boilers, boiler-plates, fire-bars, and every article, or any other component part of an engine or boiler, or any article whatsoever which is, can, or may become, applicable for the manufacture of marine machinery, shall be and the same are hereby prohibited either to be exported from the United Kingdom, or carried coastwise."(k)

It is clear, too, that upon the principles which have been laid down, coal may, under the particular circumstances of the case, regard being had to its quantity and destination, become liable to seizure.(7) *CCLXVII. Fourthly. We have now to consider the doctrine of Pre-emption as applied to cases of Contraband.

[*362] Before the Treaty of Munster, or about the middle of the seventeenth century, the custom of Pre-emption (n) by the Belligerent of the property of the subjects of another State, which was thus prevented from reaching its original destination, had a much wider operation than has been in more modern times allowed to it.

All cargoes without distinction were then subjected to Pre-emption, and various Treaties ackowledge and regulate, or prohibit, the exercise of this belligerent right;(0) and even as late as 1810, a Treaty between England and Portugal, after stipulating that military and naval stores seized by Portugal are to be paid for at the price fixed by the proprietors, adds, that if the Portuguese Government takes possession of any cargo whatever, or of any part of a cargo, with the intention of purchasing it, or otherwise, they are to be liable for the damage which the goods may sustain while under the custody of the Portuguese officers. (p)

CCLXVIII. But according to general modern usage, the doctrine of Pre-emption(q) rests upon the distinction between *articles which are Contraband universally, and those which, being ambigui [*363]

usus, are Contraband under only the particular circumstances of the case. The carrying of the former class alone is punishable, and entails the penalty of confiscation either of ship or cargo, or both.(r)

The latter class are subject to the milder belligerent right of Pre-emp

(k) The like prohibitions were extended to the Island of Malta by Order in Council, dated 15th April, 1854.

(1) Ortolan, Dipl. de la Mer, t. ii. 1. iii. ch. vi. p. 206, (second edition.) In this the author retracts his former opinion that coal might be Contraband.

(n) According to Grotius, (note to the words "publicæ significationes fieri") the true meaning of the French Ordonnance of 1584, art. lxix. subjected Contraband not to confiscation but pre-emption.

(0) Manning, p. 313, e. g. Denmark and Spain, 1641.-VI. Dumont, i. 210. England and Portugal, 1642, ib., 239. Denmark and Holland, 1645, ib., 313. Spain and Holland, 1648. Treaty of Munster, ib., p. 431. England and Holland, 1654, ib. ii. p. 76. England and Portugal, 1654, ib., p. 83.

(p) De Martens, Suppl., t. vii. p. 207.

(7) The right of Pre-emption (Mr. Ward says) is rather a waiver of a greater right than a right itself. It is an indulgence to the Neutral rather than a privilege of the Belligerent, and can only be called a right, because the Belligerent in fact may pretend to something more.-Of Contraband, p. 196.

(r) Heffters seems to have well understood this distinction. He speaks of horses, materials, provisions, money :-"Es kann daher den Kriegführenden nur gestattet sein, thatsächlich gegen die Neutralen oder der neutralen Handel einzuschreiten, wenn jenen Artikeln eine Bestimmung für die feindliche Staatsgewalt und deren Kriegsmacht mit zureichenden Gründen beizumessen steht." They do not fall under the category, "unerlaubten strafbaren Handel," 160.

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tion, which is considered as a fair compromise between the right of the Belligerent to seize, and the claim of the Neutral to export his native commodities, though immediately subservient to the purposes of hostility.(s)

CCLXIX. According to the practice of the British Prize Court, a profit of ten per cent. has been usually allowed to the proprietor of the goods seized for the purposes of Pre-emption. This practice is recognized in the Treaty between Great Britain and the United States of North America of the 19th November, 1794, which stipulates, that a full value of all articles seized, together with a reasonable mercantile profit thereon, together with the freight, shall be paid by the captors or their Government;(t) and in the Treaty between Great Britain and Sweden in 1803 it is stipulated that there shall be paid a profit of ten per cent. on the price of the merchandize, valued at the option of the proprietors, either in England or Sweden, with an indemnity for the freight and the expenses of detention.(u)

CCLXX. The case of The Haabet(x) may be considered *as [*364] containing the best enumeration of the principles which govern the decision of the British Courts of International Law upon this subject.

"This was a case arising on an objection to a report of the registrar and merchants respecting the allowance of insurance as part of the price of a cargo of wheat, going from Altona to Cadiz, but seized and brought into this country, and bought by Government. The demand of the claimant, Mr. Peschie, of Copenhagen, had been disallowed in the report, on the ground that the insurance had not actually been made." It was upon this state of facts that Lord Stowell said ;- This is a question on a report of the registrar and merchants respecting an allowance of insurance on a cargo of corn, seized and brought into this country. The cargo was decreed to be restored, and the registrar and merchants were directed to make a report on the value due to the claimant; such reports are in their nature partly legal and partly mercantile; it is a report proceeding from persons qualified, in both these respects, to form a sound judgment on the subject before them; one of them being, from his connection with Courts of Justice, supposed capable of forming his own opinion, and of assisting his associates on all questions of law, in the first instance, subject to the inspection and correction of the court, whilst the other part of this domestic forum, as I may call it, consists of persons acquainted with trade, and exercising their judgment on matters relative to commerce. It is from the report of a commission so constituted, that the question is now brought before the court on a subject partly legal and partly mercantile.

"The question is, whether there is any reasonable ground for me to pronounce that the registrar and merchants have disallowed a just

(s) The Sarah Christina, 1 Rob. Adm. Rep., p. 241.
(t) De Martens, v. p. 674.

(u) Ib., Suppl., iii. p. 526.

(x) 2 Robinson's Adm. Rep., pp. 174-185. As to other cases on the same subject, see-The Maria Magdalena, Hay & Marriott's Adm. Rep., p. 250. The Vryheid, ib., p. 188. The Vrow Antoinette, Hay & Marriott's Adm. Rep., p. 142; also cases mentioned, ib., pp. 148, 169, 176, 217, 246, 267, 270, 272, 287, as to the purchase of mixed goods, i. e., some Contraband, some not.

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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 [*365] 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. Very 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.

"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)

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 [*369]

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.(b)

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.