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demand, in disallowing a charge of insurance *which had not been made. It has been argued that this charge ought to have been allowed, because it is usually so allowed in the dealings of merchants with each other; I am not clear that this is a necessary consequence, for it is surely no certain rule that in all cases where a cargo is taken jure belli, but for the mere purpose of Pre-emption, that it is to receive a price calculated exactly in the same manner, and amounting precisely to the same value, as it would have done, if it had arrived at its port of destination in the ordinary course of trade.

"The right of taking possession of cargoes of this description, Commeatus or Provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations; 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. A more mitigated practice has prevailed in later times of holding such cargoes subject only to a right of Pre-emption, that is, to a right of purchase upon a reasonable compensation, to the individual whose property is thus diverted. I have never understood that, on the side of the Belligerent, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that, on the side of the Neutral, the same exact compensation is to be expected, which he might have demanded from the enemy in his own port; the enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for the commodity if it gets there; it does not follow that acting upon my rights of war in intercepting such supplies, I am under the obligation to pay that price of distress. It is a mitigated exercise of war on which my purchase is made, and no rule has established that such a purchase shall be regulated exactly upon the same terms of profit which would have followed the adventure if no such exercise of war had intervened; it is a reasonable indemnification [*366] *and a fair profit on the commodity that is due, reference being had to the original price actually paid by the exporter, and the expenses which he has incurred. As to what is to be deemed a reasonable indemnification and profit, I hope and trust that this country will never be found backward in giving a liberal interpretation to these terms; but certainly the capturing nation does not always take these cargoes on the same terms, on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs and damages, in which all loss of possible profit is to be laid upon unjust captors; for these are not unjust captures, but authorized exercises of the rights of war.

"Two or three considerations have been urged, which may, with all propriety, be dismissed; one is, that it was undertood between the King's Government and the parties that this charge should be allowed. Certainly if it were made out by any credible proof, that the faith of Government had been in the slightest manner pledged to such an understanding, there is no principle which this Court would hold more sacred, than that the faith of Government should be held inviolate in transactions of this

kind; but no sort of proof is offered of this, and the fact has in no way come to my knowledge. It is said, likewise, that in the cases of this kind which occurred last war, and which were then settled by the Navy Board, the charge of insurance was allowed, but the policy of insurance was never called for. How this practice came to prevail there, whether under a notion that the insurances had been really made whenever they were charged, whether under any order of Government, or how otherwise, I am not informed; the persons who had to settle those accounts were not mercantile men, and might be led by the charge to suppose, that it had actually been incurred. Under whatever circumstances such a practice grew up, if it did obtain, it is no binding rule upon the registrar and merchants here; it might be simple mistake, and at best it is no deciding authority.

*I have already said, that the expected payment at the [*367] port of delivery, is not the necessary measure of compensation at the port of the Belligerent. It is not so with reference to any constituent of price; with respect to insurance, considered as such, it would be peculiarly improper: it is reasonably to be charged at the port of delivery, although it has never been paid, because the merchant has stood his own risk, and has purchased the insurance at the expense of his own danger. But is that the case where the voyage has been interrupted almost in its commencement, where the cargo has been carried into a neighbouring port? In the present case the voyage was from Altona to Cadiz, from the north to the south of Europe, and the cargo is seized upon its entrance into the British Channel very soon after quitting its port. Most of the cargoes have a similar destination, and are taken under similar circumstances. What pretence is there to say, that all risks of the voyage have been incurred?-the utmost that could be claimed is an insurance pro ratâ itineris peracti, amounting to a very small proportion of the whole, hardly deserving a particular consideration. As to what is said, that in the case of capture of ships you allow the full freight of the whole voyage, that allowance is made on another account; you take the ship in that case on account, not of itself, but of its cargo; you interrupt its occupation, which was legal and innocent, and it is therefore not unjust to allow it the benefit of its original contract, which you alone have prevented from being carried into execution. different is the consideration of risk, respecting a cargo, which has never been incurred, and of a payment which is due only, on the event of that risk having been actually incurred no contract subsisting, and the cargo being, in its own nature, liable to this species of interception.

Very

"Upon the whole, I see no sufficient reason to pronounce that the registrar and merchants have adopted a wrong measure of value in disallowing the charge of insurance; they have allowed what, upon their own experience, they *pronounce to be a reasonable indemnifica[*368] tion and profit, and I do not understand that the sufficiency of this indemnification and profit is impeached on any other ground than that an insurance would have been added in the ordinary course of a mercantile account, if the cargo had reached its intended destination. Being of opinion that the ordinary terms of a mercantile account, to be

settled on the completion of the voyage, do not furnish (all circumstances being duly weighed) the necessary or just measure of value to be applied in transactions of this kind, I do not find myself enabled to sustain the objection.'"

CCLXXI. Fifthly. An exception from the foregoing rule is furnished by the case of Ambassadors sending dispatches from the neutral country in which they are resident, for the purpose of preserving the relations of amity between that State and their own Government. It is indeed competent to a Belligerent to stop the Ambassador of his enemy on his passage; but when he has arrived, and has taken upon himself the functions of his office, and has been admitted into his representative character, he is entitled to peculiar privileges, as set apart for the protection of the relations of amity and peace, in maintaining which all nations are, in some degree interested. With respect to this question, the convenience of the neutral State is also to be considered; for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted; it would be almost tantamount to preventing the residence of an Ambassador in a neutral State, if he were debarred from the means of communicating with his own.

Despatches found on board a neutral ship, containing communications from a hostile Government to their Consul resident in a neutral country, are not generally speaking, of the nature of Contraband. (a)

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The legal presumption is that the communication has reference to the commercial relations of the Belligerent and the *Neutral, and if they were interdicted, the functions of the official persons charged with the maintenance of these relations would altogether cease. It is to be remembered, that the functions of the Consul relate to the joint commerce in which the neutral as well as the Belligerent is engaged.(6)

CCLXXII. Sixthly. As to carrying of military persons in the employ of a Belligerent, or being in any way engaged in his transport service.

It has been most solemnly decided by the Tribunals of International Law, both in England and the United States of North America, that these are acts of hostility on the part of the Neutral which subject the vehicle in which the persons are conveyed to confiscation at the hands of the Belligerent.(c)

It may be difficult to define what is the number of military persons the conveyance of whom may subject the neutral ship to this penalty; but, in truth, the number alone is an insignificant circumstance in the considerations on which the principle of Law is built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower conditions: to send out one general may be a more noxious act than the conveyance of a whole regiment.(d) It has been justly holden that a ship so employed cannot escape confiscation by alleging that she acted under duress and violence. If an act

(a) The Caroline, 6 Ib., p. 468.

(b) The Madison, Edwards's Adm. Rep., p. 224.

(c) The Caroline, 4 Rob. Adm. Rep. p. 256. The Friendship, 6 Ib., p. 420. The Orozembo, ib. p. 430. The Commercen, 1 Wheaton's (Amer.) Rep. 391. (d) The Orozembo, 4 Rob. Adm. Rep., pp. 453-4.

of force, exercised by one Belligerent Power on a neutral ship or person, were to be deemed as sufficient justification for any act done by him contrary to the known duties of a neutral character, the rights of the Belligerent and the rules of International Law would be easily evaded and set at naught. The Neutral *must look to his own Govern[*370] ment for redress against the Government which has coerced him.

Moreover, the penal liability of the ship so employed is not extinguished until the vessel has shaken off the belligerent character which her occupation has impressed upon her. So long as she continues under the command of the enemy she remains liable to capture and condemnation.(d)

CCLXXIII. Official communications from an official person on the public affairs of the belligerent Government,(e) are such despatches as impress a hostile character upon the carriers of them.

The mischievous consequences of such a service cannot be estimated, and extend far beyond the effect of any Contraband that can be conveyed, for it is manifest that by the carriage of such despatches the most important operations of a Belligerent may be forwarded or obstructed.

In general cases of Contraband, the quantity of the article carried may be a material circumstance, but the smallest despatch may suffice to turn the fortunes of war in favour of a particular Belligerent. (f)

CCLXXIV. The penalty is confiscation of the ship(g) which conveys the despatches, and, ob continentiam delicti, of the cargo, (h) if both belong to the same master.

It is indeed competent to those entrusted with the care of the ship, on board of which such despatches are found, to discharge themselves from the imputation of being concerned in the knowledge and management of the transaction.(i) But the presumption is strong against the ignorance of the master of the ship, and when he has knowingly taken on [*371] *board a packet or letter addressed to a public officer of a belligerent Government, the plea of the insignificance of communication, and its want of connection with the political objects of the war, will not avail him, nor, except perhaps in an extreme case of imposition practised upon him, will the plea of ignorance of the contents of the despatches avail him; his redress must be sought against the person whose agent or carrier he was.

s.(k)

With respect to such a case as might exempt the carrier of despatches from the usual penalty it is to be observed that where the commencement of the Voyage is in a neutral country, and is to terminate at a neutral port, or at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite the vigilance of the master, and,

(d) The Caroline, 4 Rob. Adm. Rep., pp. 259-261.

(e) The Caroline, 6 Ib., p. 465.

(f) The Atalanta, ib. 440, is a leading case on the subject, in wall the premises which lead to the conclusion expressed in the text are fully sorth. (g) The Caroline, ib., p. 461, note. (h) The Atalab. p. 460.

(2) Ib., p. 445. The Rapid, Edwards's Adm. Rep., 228. (k) The Hope, cited in the Atalanta, 6 Robinson, p. 457. in note to the Caroline, 6 Rob., pp. 461, 462. The Rapid, pp. 228-229.

Tame case cited

tds's Adm. Rep.,

therefore, it may be proper to make some allowance for any imposition which may be practised upon him. But when a neutral master receives papers on board in a hostile port, he receives them at his own hazard, and cannot be heard to avow his ignorance of a fact with which, by due inquiry, he might have made himself acquainted.

CCLXXV. Seventhly. We have to consider the penalty of carrying Contraband.

By the ancient Law of Nations, the carrying of Contraband worked in all cases a forfeiture of the vehicle which carried it.

According to the mitigated rule of modern practice, the ship is not generally condemned, but freight and expenses only are forfeited.(1) *The exceptional cases, in which the severity of the ancient law is still applied, are—

1. Cases in which there are circumstances of aggravation.

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2. Cases in which the Contraband belongs to the owner of the ship. (m) CCLXXVI. 1. Among the circumstances of aggravation, are to be mentioned::

a.

A false destination, which, with Contraband on board, subjects both ship and cargo to condemnation.(n)

B. The carriage of Contraband, with the privity of the owner, and in violation of a Treaty.(0)

Y.

A concealment of Contraband in the outward cargo, which has been holden to render the ship, on her return, subject to condemnation; and the misconduct of the supercargo-the agent of the owner has been holden to affect the owner's interest.(p)

d. A private vessel has been forfeited by the contraband traffic of an officer placed in command by the Board of Admiralty.(q)

2. In cases in which the ship belongs to the owner of the Contraband, condemnation always follows. If the owner of the Contraband own a share only in the vessel, his share will be condemned: and this effect will be produced by the contraband articles, though unclaimed, [*373] if they appear by the evidence to belong to such part-owner. (r) CCLXXVII. With respect to the effect of Contraband upon the rest of the cargo, it is to be observed that the penalty of Contraband extends to all the property of the same owner involved in the same unlawful transaction.(s) And therefore, if the same owner possess articles which are and which are not Contraband, all will be alike condemned. To

(1) Bynkershoek, Q. J. P., l. i. c. x. The Ringende Jacob, 1 Rob. Adm. Rep., p. 90. The Sarah Christina, ib., p. 242. The Jonge Jacobus Baceman, ib., p. 243. The Mercurius, ib. p. 288. The Emanuel, ib., p. 296. The Jonge Tobias, ib., p. 329. The Wilhelmina, note to the Rebecca, 2 Rob. Adm. Rep., p. 101. The Franklin, 3 Ib., p. 217. The Neutralität, ib., p. 295. The Atlas, ib., p. 304, n. (m) The Mercurius, note, 1 Rob. Adm. Rep., p. 288. The Jonge Tobias, ib., p. 329. The Franklin, 3 Rob., p: 217. The Ringende Jacob, 1 Rob., p. 91. The Neutralität, 3 Rob., p. 295.

(n) The Franklin, 3 Rob., p. 217. The Ranger, 6 Rob., p. 125. The Edward, 4 Rob., p. 68.

(0) The Neutralität, 3 Rob., p. 295. (p) The Baltic, 1 Acton, p. 25.

(2) Blewitt v. Hill, 13 East's Reports, p. 13.

(r) The Floreat Commercium, 3 Rob., p. 178. The Franklin, ib., p. 217. The Sarah Christina, 1 Rob., p. 242. The Neptunus, 6 Rob., p. 409.