"Scott's opinion, expressed in the case of the Imina,' 3 C. "Rob. Adm. R. 168, attaches only where they are passing

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on the high seas to an enemy's port. They must be "taken in delicto, that is, in the actual prosecution of a 66 6 voyage 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.

"The further allegation that the ship was carrying goods "and papers which made them liable to be seized, is imma"terial as a ground of defence; for these goods are not "alleged to be the plaintiff's goods, and the plaintiff is not "shown to be responsible for the ship's papers, nor for any "other goods than his own. Also, if the voyage was to a "neutral port, and the law be as above stated, the facts alleged do not shew that the ship and goods were liable "to seizure.

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"Furthermore, the allegation that the ship was carrying 66 papers which made her liable to be seized, is not strictly "accurate, in reference to the Law of Nations. The papers "alone are not a breach of neutrality so as to work a for"feiture of the ship: they are only evidence from which a

cause of forfeiture may be inferred; they may be evi"denced either of enemy's property or of destination to a "blockaded port, or to an enemy's port, with contraband, "and so be evidence on which the judge may find a cause "of forfeiture proved; but they are in themselves no cause "of forfeiture. The language of Sir William Scott, in the "case of the Franklin, 3 C. Rob. Ad. R. 221, speaking of simulated papers, and saying that, this fraudulent conduct 'justly subjects the ship to confiscation,' must be taken "with reference to the question before him,-whether the ship should be confiscated as well as the contraband cargo ; "and his decision is in the affirmative, and rightly, if the

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shipowner was knowingly conveying contraband to an enemy's port, of which knowledge papers indicating a "false destination would raise a presumption.

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"These being the premises alleged in the plea, the allegation that the defendant was ignorant of them is of no "avail. If the defence is that the plaintiff has concealed a fact which he was bound to disclose, the plea should "have been framed accordingly. As it stands, it shows no "wrongful act on the part of the plaintiff towards the

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❝ insurers.

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"If the proper construction of the premises in the plea "be different from that which we have come to, still the allegation of the defendant's ignorance of those premises "would not make the plea a good defence on the ground of "concealment. The insurance is against capture, lawful "and unlawful; and the defendant, in order to discharge "himself, must show a concealment by the assured. Mr. Phillips- Phillips on Insurance,' vol. i. § 531— says: "Concealment is where a party suppresses or neglects to "communicate a material fact.' It is quite consistent with anything appearing on this record, that a letter from the "plaintiff may have miscarried, or that the defendant may "have remained in ignorance without any default of the plaintiff. The allegation, therefore, of the ignorance of "the defendant is of itself immaterial, and has no effect in avoiding the policy; and the result is that we consider the "seventh plea to be bad."

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The Judge then continued :

"We now proceed to examine the judgment set out in "the eighth plea. The condemnation appears to us to "have been for carrying contraband of war intended to be "for the use of the enemies of the United States; and the "sentence, so far from deciding that the ship with the said goods did not sail on the voyage from London to Matamoras, appears to us to express that she was on that voyage "when she was taken. The first matter of fact found by "the Judge is, that the ship was knowingly on the voyage

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"aforesaid (that is, from London to Matamoras), laden with "contraband. The second is, that the said ship with the "said cargo was not truly destined to Matamoras, a neutral port, and for the purpose of trade and commerce within "the authority and intendment of Public Law, but was "destined for some other port or place, and in aid and for "the use of the enemy, and in violation of the Law of Nations; and that the ship's papers were simulated and "false.

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"If the Judge meant to find that the ship was not bound "to Matamoras, but, on the contrary, to a port of the "enemy, the finding would have been so expressed. But, "if he meant to find that she was bound to Matamoras, not "for the purpose of commerce with the inhabitants thereof, "but for the purpose of such a sale or transfer there as that "the Confederates should get the use of the cargo, all the "words of the judgment have their usual meaning and "effect. We have no jurisdiction to inquire into, nor are "we at all considering the validity of the legal grounds of "the judgment: our task is to ascertain what matter of "fact the Judge found to exist. He may have considered "that trading with the Confederates was not within the "authority and intendment of public law, and was in vio"lation of the Law of Nations; and that a voyage to Matamoras, in order that the cargo should be transferred from "thence to some port or place for the use, of the Confederates, was a destination of the cargo for such a port or place, "and made it liable to confiscation; and that the papers "were simulated and false, because they represented Mata"moras as the final destination, and concealed a purpose of " ulterior destination.

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By this examination of the judgment set out in the plea, we are led to the conclusion that the learned Judge "did not intend to find, as a matter of fact, either that the ship had not sailed on a voyage to Matamoras, or that, "after having so sailed, she had deviated from that voyage. "But, on the contrary, he condemned her as lawful prize

"because she was in prosecution of that voyage with an " ulterior destination, either for the cargo, or the ship, or "both, as above explained.

"The judgment, therefore, does not sustain the inferences "of fact which the defendant seeks to establish thereby ; "nor does it sustain his claim of right to prevent the plaintiff from showing the truth in respect of this fact: " and the plea is therefore bad."

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CCXXXVI. The most ardent and partial supporters of neutral rights and privileges have admitted that it is not competent to a Neutral to trade with Contraband goods to a Belligerent. The controversy has in this case arisen chiefly upon the following points, viz. :

I. What is Contraband?

II. What is the penalty attaching to the Neutral for carrying it to the enemy?

These questions (r) require a full discussion under the following heads :

(r) One of the earliest legislative prohibitions on the subject of Contraband is probably of the Emperor Marcian to his subjects :"Nemo alienigenis barbaris cujuscunque gentis ad hanc urbem sacratissimam, sub legationis specie vel sub quocunque alio colore venientibus, aut in diversis aliis civitatibus vel locis, loricas, scuta et arcus, sagittas et spathas et gladios, vel alterius cujuscunque generis arma audeat venumdare: nulla prorsus iisdem tela, nihil penitus ferri vel facti jam vel adhuc infecti, ab aliquo distrahatur. Perniciosum namque Romano imperio et proditioni proximum est, barbaros, quos indigere convenit, telis eos ut validiores reddantur instruere," &c.— Cod. iv. t. xli. 2.

The Canon Law forbade the exportation of arms to the Infidel—a prohibition which, in 1855, it would have been rather awkward to enforce :-"Ita quorundam animos occupavit sæva cupiditas, ut, qui gloriantur nomine Christiano, Saracenis arma, ferrum, et ligamina deferant galearum," &c.; all such excommunicandi.—Decret. 1. v. t. vi. c. 6.

See also a similar prohibition and punishment, Extrav. Comm. 1. v. t. ii.

As to the International authority of the Pope, vide ante, vol. ii. pp. 367-9.

"Contrabannum merces banno interdicta; Italis contrabbando; Gall.

1. The carrying of unquestionable Munitions of War, military or naval, in their perfect and completed state (s). 2. The permitting the sale of such articles to a Belligerent within the territory of the Neutral.

3. The carrying of material of a kind which does not certainly indicate whether their destination be for belligerent or ordinary commercial purposes: articles ancipitis vel promiscui usús, especially of commeatus, provisions and money.

4. The doctrine of Pre-emption.

5. The carrying of military persons in the employ of a Belligerent, or being in any way engaged in his transport

service.

6. The carrying of the despatches of a Belligerent. 7. The penalty of carrying Contraband.

8. The principal Treaties upon the subject of Contraband.

CCXXXVII. First. With respect to the carrying of unquestionable munitions, military or naval, of war, in their perfect and complete state.

The general International Law upon this subject is founded upon the clearest principles of justice and reason.

"That person" (said the great Athenian orator), "who"ever he be, who prepares and provides the means of my "destruction, he makes war upon me, though he have never "cast a javelin or drawn a bow against me" (t).

"If" (said Lord Grenville) "I have wrested my enemy's "sword from his hands, the bystander who furnishes him

contrebande. Charta anno 1445, tom. iii. Cod. Ital. Diplom. col. 1756: 'Item quod non permittant committentes Contrabanna, dicti salis vel aliarum rerum. in dictis locis tutè et securè permanere.'"-Du Cange, Gloss. (ed. Carpenterius), Parisiis, 1842.

(s) As to ambassadors of Belligerents on board neutral vessels, see vol. ii. pp. 160-7, et vide post.

(t)

ὁ γάρ, οἷς ἂν ἐγὼ ληφθείην, ταῦτα πράττων καὶ κατασκευαζόμενος, οὗτος ἐμοὶ πολεμε, κάν μήπω βάλλῃ, μηδὲ τοξεύῃ.”-Demosth. Phil. Γ.