the provisions were, from their nature and quality, adapted to military use; since, otherwise, there would be no basis for the presumption that they would have been applied to that use, had their arrival been permitted. Thus, where cheeses, intercepted as contraband, were destined to Brest, a port notoriously of naval equipment, evidence was required by Sir William Scott of their fitness for naval use.1

§ 25. The ancient custom of pre-emption, by the belligerent, of the property of the subjects of another State, as practised about the middle of the seventeenth century, had a much wider operation and very different meaning than is now attributed to it. By the French ordonnance of 1584, article sixty-nine, contraband was subjected, not to confiscation, but to pre-emption. But, according to the modern use of this term, it is applied to articles not subject to confiscation, as contraband in themselves, but being ambigui usûs are made subject to seizure, and to be condemned to the use of the belligerent, he paying their value with a reasonable mercantile profit,— which, by the practice of the British prize courts, is usually fixed at ten per cent. If the goods so seized are contraband, the carrying of them is a criminal act, punishable by confiscation or any milder penalty which the belligerent may see fit to impose; but if not contraband, by the law of nations, they are not liable to pre-emption. The question, therefore, resolves itself into one of contraband, upon which opinions are somewhat divided.2

§ 26. But the British Admiralty, and especially Sir William Scott, went much further, and sustained the capture of provisions which were not even probably destined to military use, not, indeed, confiscating as contraband of war on the ground of their being ambigui usûs, but condemning them to the use of the British Government, on the payment of a price equivalent to their value, or rather, their cost, and the specified mercantile profit of ten per cent. A similar rule of pre-emption was applied by Great Britain to certain native commodities of neutral States, found in neutral vessels, and

1 The 'Commercen,' 2 Gallis. R., 264; the Jonge Margaretha,' 1 Rob., 196; the Haabet,' 2 Rob., 182; the Zelden Rust,' 6 Rob., 93; the 'Ranger,' 6 Rob., 126; the 'Edward,' 4 Rob., 68; Maisonnaire v. Keating, 2 Gallis R., 334.

2 Phillimore, On Int. Law, vol. iii. §§ 267–270; the 'Sarah Christina,' 1 Rob., 241; De Cussy, Droit Maritime, liv. i. tit. iii. § 18.

required by her for naval purposes. In some cases, where this rule of pre-emption, or pretended right of purchase, was exercised, it was not claimed that the goods so captured and condemned to a forced sale, were contraband, even on the ground of being ambigui usûs; but the right to pre-empt them was claimed, because the ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them.' It was not pretended, as, indeed, it could not have been, that the claim thus asserted by some of the maritime States of Europe a century before was generally admitted, and adopted as a rule of international law, or that the practice ever had received any such sanction as to make it binding upon neutrals.1

§ 27. The arguments adduced in favour of the British right of pre-emption failed to convince its opponents of its justness or legality, and its enforcement was, at the time, most strenuously opposed by the Government of the United States and the neutral powers of Europe. Nor did this opposition cease with the war in which the rule had originated, or, at least, been called into operation. Since then, text-writers have most emphatically denied the legality of the rule, and successfully attacked the arguments by which it was attempted to be defended. Some British writers still advocate it as a principle of law, but there is little probability that in any future war the British Government will attempt to exercise the right of pre-emption, except upon goods manifestly contraband of war.2

§ 28. Arnould lays down the rule, that all insurances on

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 24; Kent, Com. on Am. Law, vol. i. pp. 138, 139; Debrett's State Papers, p. 380; Manning, Law of Nations, pp. 287, 316.

2 By 27 and 28 Vict., cap. 25, s. 38, passed in 1864, it is enacted that where a ship of a foreign nation passing the seas laden with naval or victualling stores intended to be carried to a port of any enemy of Great Britain, is taken and brought into a port of the United Kingdom, and the purchase for the service of Her Majesty of the stores on board the ship appears to the Lords of the Admiralty expedient, without the condemnation thereof in a prize court, in that case the Lords of the Admiralty may purchase on the account or for the service of Her Majesty, all or any of the stores on board the ship, and the Commissioners of Customs may permit the stores purchased to be entered and landed within any port. This is a very important enactment.

articles contraband of war are wholly void, and incapable of being enforced in the courts of the belligerent country. But if effected by or for neutrals, and sought to be enforced in the court of a neutral State, the case would be different, for it is not deemed unlawful in a neutral, by its own government, to be engaged in a contraband trade. The insurance, therefore, by a neutral, of articles contraband of war, being per se a valid contract, may be enforced in the courts of the neutral country, provided the nature of the trade and of the goods was disclosed to the underwriter, or provided there be just ground, from the circumstances of the trade, or otherwise, to presume that he was duly informed thereof. Mr. Duer contends that the carrying of contraband, being contrary to the general law of nations, renders the voyage prohibited and illegal, and hence, that an insurance of the ship on such a voyage cannot be sustained. We copy a portion of his remarks: 'An insurance,' he says, 'upon goods liable to confiscation, as contraband of war, if made in the belligerent country whose rights are violated, it is admitted, by all writers, is wholly void; nor do I perceive any reason for doubting that an insurance upon every other subject or interest, liable to be involved in the same penalty, is equally invalid. Hence, a policy upon the freight of the contraband articles, upon other goods, the property of the same owner, and upon the ship, when subject to condemnation, is, in all cases, an illegal contract; for, although the penalty to which the subject is liable may not always be enforced in a court of Admiralty, that court alone seems competent to judge of the special circumstances that may warrant a discretionary relaxation of its general rules. Nor to avoid a policy upon the ship, does it seem to be necessary that she should be placed in circumstances to justify her condemnation. The transportation of contraband, as viewed by the law of nations, is universally an unlawful act; and it is for this reason that it subjects the ship to the penalty of the loss of freight. The imposition of this penalty, it seems to me, renders the voyage prohibited and illegal; and hence, if we are governed by analogy, an insurance of the ship, on such a voyage, cannot be sustained. The arguments of a sound policy lead us to the same conclusion. It is impossible to deny that a belligerent country has a real, and, in some cases, a deep interest in preventing

the transportation of contraband articles to the use of the enemy. To permit the vehicle of transportation to be insured, is to encourage the act. These reasons do not apply to an insurance upon the innocent goods of an innocent shipper, which is, doubtless, valid. He was no party to the illegal transaction, had no power to prevent it, and, it must be presumed, had no knowledge of its existence. It is, however, doubtful whether the insurer is liable even to the owner of innocent goods, for a loss arising from condemnation or detention, by his own government, of the carrier-ship.' These views are contested by some of the Continental publicists.1

1 Arnould, On Insurance, vol. i. p. 740; Duer, On Insurance, vol. i pp. 642, 643; Bedarride, Droit Maritime, § 1095, et seq.

The English law seems to have omitted to enact that contraband must be specified in the policy of insurance. But the assurer would not be liable unless aware of the risk.

According to the French law, contraband of war must be specially and specifically described in the policy of insurance, unless the assured be ignorant of the nature of the goods. Ord. de la marine, liv. iii. t. vi. art. 31.

6

An insurance in contraband cannot be enforced in the country of the hostile belligerent (Gibson v. Service, 5 Taunt., 433), but if made for or by a neutral, it is valid in the neutral country. The Santissima Trinidad,' 7 Wheat. 283; Ex parte Chavasse, in re Grazebrooke, 34 L. J. (Chanc.) 17. Although it was not, nor is a breach of neutrality to carry enemy's goods, not contraband, from a neutral to an enemy's country, no insurance could be effected in the belligerent country, but since the Declaration of Paris, 1856, it is questionable whether such an insurance might not be valid in the belligerent country.

267

CHAPTER XXVII.

RIGHT OF VISITATION AND SEARCH.

1. General exemption of merchant vessels on the high seas-2. Right of search a belligerent right only-3. British claim of a right of visit in time of peace-4. Denied by the United States-5. Opinions of American publicists-6. Of Continental writers-7. Of Lord Stowell and Mr. Phillimore-8. Distinction between pirates and slavers9. Great Britain finally renounces her claim of right of visit— 10. Visitation and search in time of war-11. English views as to extent of this right-12. Views of American writers-13. Limitations imposed by Continental publicists-14. Force may be used in the exercise of this right-15. But must be exercised in a lawful manner -16. Penalty for contravention of this right-17. English decision as to effect of convoy-18. Ships of war exempt from search19. Merchant ships under their convoy-20. Treaties respecting neutral convoy-21. Opinions of publicists-22. Neutral vessels under enemy's convoy-23. Resistance of master on cargo-24. Neutral property in armed enemy vessel-25. Documents requisite to prove neutral character-26. Concealment of papers-27. Spoliation of papers-28. Use of false papers-29. Impressment of seamen from neutral vessels-30. American rule as defined by Webster.

§ 1. IT has been stated in a preceding chapter that every merchant vessel on the high seas is regarded, in international law, as a part of the territory of the State to which it belongs. To enter into such vessel, or to interrupt its course, by a foreign power in time of peace, or (it being neutral) by a belligerent in time of war, 'is an act of force, and is, primâ facie, a wrong, a trespass, which can be justified only when done for some purpose, allowed to form a sufficient justification by the law of nations.' The right of a vessel of one State to visit and search a vessel of another State on the high seas, in any case, is therefore an exception to the general rights of property, jurisdiction, equality and independence of sovereign States, and to justify such an act it must be shown that the particular case comes clearly within the exceptions to this rule which have been established by the positive law of nations, or by treaty stipulations between the parties.'

1 Wheaton, Elem. Int. Law, pt. iv. ch, iii. § 18; Webster, Dip. and