to one of the passengers and supposed to be dangerous, and tore up some alleged private letters.

The District Court (S. New York) condemned vessel and cargo. The latter comprised artillery harness, "army" boots, regulation" grey blankets, ninety-five casks of horseshoes, 52,000 horseshoe nails, a quantity of iron, steel, shovels, spades, blacksmiths' bellows and anvils, nails, leather; and drugscalomel, morphine, chloroform, and quinine, with large varieties of ordinary goods.

The Supreme Court held that not even the cargo could be condemned (on the ground of breach of blockade) simply because it was meant to reach the Confederacy through a port which had perhaps by oversight been left unblockaded (Brownsville, opposite Matamoras), or by inland conveyance. But on the question of contraband it took up the surprising position that "the conveyance by belligerents to neutrals of contraband articles is always unlawful, and such articles may always be seized during transit by sea.” This is a proposition which throws neutral commerce entirely at the mercy of a belligerent; it is a proposition entirely unheard of before the middle of the nineteenth century, and it derives no sanction from the practice of any maritime war.

Lord J. Russell was disposed to take the rulings of the U.S. Courts with some humility; but, invited by Lord Derby to say plainly whether he admitted that the trade of neutral ports was liable to such interferences, he explained that all he meant was that a simulated neutral destination could not protect a ship.

Eventually the matter was slurred over in the general arbitration and proceedings before the Mixed Commission. It must be noted that neither the "Peterhoff" nor the "Springbok" was confiscated; and the "Bermuda" was so closely identified with Confederate interests that morally, if not legally, the seizure was hardly to be regarded as an affront to Britain. The point of principle, however, remained open.

In Hobbs v. Henning1 the English Court of Common Pleas had the opportunity of pronouncing on the legality of the "Peterhoff's" voyage. The action was on a valued policy of insurance on goods, and the defendants pleaded that the goods were contraband of war and shipped for importation into a belligerent port and liable to seizure as contraband, and also the fact of their condemnation by the District Court. Plaintiff pleaded that the ship was bound to Matamoras and not to a belligerent port; which defendants asserted was no answer to their above plea.

1 17 C.B.N.S. 791; Erle, Byles, and Keating (1864).

The Court rejected the defendant's plea.

"The allegation," said Erle, C.J., "that the goods were shipped for the purpose of being sent to an enemy's port is an allegation of a mental process only. We are not to assume therefrom either that the plaintiff had made any contract or provided any means for the further transmission of the enemy's goods into the enemy's State, or that the shipment to Matamoras was an unreal pretence. If the goods were in course of transmission, not to Matamoras, but to an enemy's port, the voyage would not be covered by the policy."

But that point was raised by a different plea; on the plea under discussion, a mere allegation of mental purpose was raised, which might be consistent with a bona fide importation of goods into Mexico as a commercial speculation, well knowing that they would be bought by a belligerent. The plea further alleged generally that the goods were seizable as contraband; but—

"The right of capture, according to Sir W. Scott's opinion expressed in the case of the 'Imina,"1 attaches only when they are passing on the high seas to an enemy's port. . . . The liability therefore of these goods to lawful seizure, although their quality was such as might make them contraband of war, depended on their destination, and they were not liable unless it distinctly appeared that the voyage was to an enemy's port."

Then as to the allegation that the ship did not sail on the voyage covered by the policy-which was also pleaded as matter of estoppel, on account of the decision of the United States Court -the judges' held the American decision to be no estoppel as to particular facts, and also that, if it could have been such, it did not decide that the ship did not sail on her insured voyage to Matamoras, but, on the contrary, it decided that she did. Judgment was given for the insured plaintiff.

1 Supra, p. 261.

2.Keating, J., expresses no opinion as to whether the finding of fact by a prize-court would operate as an estoppel.

A

CHAPTER IV

CARRIAGE OF PROPERTY AT SEA

ENEMY'S GOODS IN NEUTRAL SHIPS-NEUTRAL GOODS IN ENEMY'S SHIPS

NEUTRAL flag covers enemy's goods except contraband of war: Neutral goods, except contraband of war, are not liable to seizure under the enemy's flag.1

Although these propositions contained in the Declaration of Paris, 1856, are to-day generally recognized in practice, they are not yet of universal acceptance, and therefore not enforceable upon all nations.

The States possessing a coast which up to the present have withheld a formal adherence, are the United States, Spain, Mexico, and Venezuela.

The first named, however, at the commencement of the Civil War, and again in the Spanish-American War, declared their adherence for the duration only of hostilities, and Spain, whilst repudiating her obligation to the Declaration of Paris, responded in the latter case by taking a similar course.

Under such circumstances, then, it is still necessary to state the opposing doctrines, and to examine the principles upon which they are based.

The Competing Rules.

(1) Enemy's goods may be captured even on board neutral ships, and neutral goods are free on board enemy's ships.

This doctrine was embodied in the Consolato del mare, and was universally accepted in Western Europe during the Middle Ages. It was based upon the principle:

That the quality of the goods should be determined by the character of the owner.

In the sixteenth century France not only seized enemy's goods in neutral ships, but the ships as well, and it was not till 1744 that neutral vessels carrying enemy's goods were freed from confiscation. In 1778 this practice was altogether abandoned, and France became the advocate of the opposing doctrine, "Free

1 Hertslet, "Treaties," X, p. 547.

ships, free goods." In the war with England, however, in 1793, the temptation was too strong, and three months had scarcely passed before she reverted to her former practice, with the exception that the neutral ship was released and freight paid by the captors.

On the other hand, France stands almost alone in consistently upholding the maxim, "Enemy's ships, enemy's goods." This principle that the goods of a neutral friend laden on board an enemy's ship were good and lawful prize was incorporated in the ordinances of 1538, 1543, and 1584. The declaration of 1650 formed an exception, but the former practice was revived in 1681. From this period France generally adhered in her ordinances and in her treaties to this principle, sometimes in conjunction with the principle, "Free ships, free goods," sometimes without it.

Spain pursued a similar policy. In 1780, however, she too abandoned the principle of "Enemy's ships, enemy's goods," and exempted not only enemy's goods in neutral vessels, but the vessels as well.

So far as the recognition of the old rule was concerned, there was no change in English policy, either in theory or practice, apart from some treaty, until the Crimea War. How far that part of the rule which allowed the confiscation of the neutral ship laden with enemy's goods was followed in early times it is impossible to say. It was, however, asserted in 1640, on the authority of Sir Henry Martin, that it had never been the practice to condemn neutral ships for having enemy's goods on board. On the contrary, that the freight of such goods had always been paid.1

In the case of the "Pearl," in 1704, although the cargo was condemned as enemy's goods, freight was ordered to be paid.

The celebrated answer2 in 1753 to the Prussian memorial contains a list of Prussian cases, amongst which a class is described as "ships restored with freight according to the bills of lading for such goods, which were found to be the property of enemy and condemned as prize."

"It was the invariable practice," says Sir Sherston Baker, "of the British Court of Admiralty during the wars of 1801 to restore the vessel, unless in cases where some circumstances of mala fides occurred, or where the ship was adjudged to have drawn on herself the loss of freight-as a penalty for some act which, though a departure from pure neutral conduct, has not, according to the practice of the law of nations, made her liable to condemnation." 3

1 Sydney, State Papers, Vol. XXI, 662.

2 Printed in the "Collectanea Juridica." Described as one of the ablest expositions of International Law ever embodied in a State Paper.

3 Halleck's "International Law," Vol. II, 309.

England, therefore, continued the old practice of seizing enemy's goods on board neutral ships whilst releasing the vessel upon payment of freight.

Upon the question of the carriage of neutral goods in enemy's ships, Great Britain appears in the early part of the nineteenth century to have wavered in her application of this part of the doctrine of the Consolato del mare. But this was only temporary, and, apart from treaties, Great Britain continued up to the Declaration of Paris to maintain the rule of International Law in her municipal code that neutral goods in enemy's ships were free.

The First Armed Neutrality was, as we shall presently see, silent upon this point, since it was useless to ask for what Great Britain already gave voluntarily.

This rule was, however, very considerably modified in practice by the application of a conflicting doctrine embodied in the rule, (2) Free ships, free goods; enemy's ships, enemy's goods. This rule is based upon the principle:

That the quality of the goods should be determined by the character of the carrier.

The earliest recorded deviation from the Common Law rule is to be found in a treaty between France and the Porte in 1604, whereby French goods on board the ships of the Porte's enemies were to be restored to the owner, and goods on board French ships belonging to the Porte's enemies were not liable to seizure.1

It was not, however, till 1650 that the application of this principle formed the subject of agreement between Christian Powers.

The United Provinces.-The Dutch at this period may be fairly styled the carriers of the world, and it was to their obvious interest to obtain the immunity of goods carried in neutral bottoms.

In that year they concluded a treaty with Spain whereby it was agreed that the goods of the enemies of either party should be free from capture when on board the ships of the other party provided the latter were neutral.2

This policy was continued and embodied in treaties having similar objects with Portugal in 1661, France in 1661 and 1662, England in 1667, Sweden in 1667, England in 1674, Sweden in 1675, France in 1678, Sweden in 1679, England in 1689, and France in 1697.

France. In addition to her treaty with the Porte, France gradually followed the example of the Dutch. In 1646 she had