with arms and munitions of war, the government of the United States, nevertheless, was not bound to prevent it, could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. The 18th article (of the treaty between the United States and Mexico) enumerates those commodities which shall be regarded as contraband of war, but neither that article nor any other imposes on either nation the duty of preventing, by previous legislation, commerce in such articles. Such commerce is left to its ordinary fate according to the law of nations." The above opinion of Mr. Webster, quoted by Mr. Lawrence, was cited in Parliament by the Solicitor General in February, 1862, and the principle laid down in it adopted by the government of Great Britain. Mr. Layard said, in reference to contraband trade carried on by British subjects, and after quoting the Foreign Enlistment Act of Great Britain: "That act does not touch in any way whatever private merchant vessels, which may carry cargoes, contraband or not contraband, between this country, or any of the dominions of Her Majesty, and any port in a belligerent country, whether under blockade or not; and the government of this country and the governments of our colonial possessions have no power whatever to interfere with private vessels under such circumstances. "It is perfectly true that in the Queen's proclamation there is a general warning at the end, addressed to all the Queen's subjects, that they are not, either in violation of their duty to the Queen as subjects of a neutral sovereign, or in violation or contravention of the law of nations, to do various things, one of which is carrying articles considered and deemed to be contraband of war, according to law or the modern usages of nations, for the use and service of either of the contending parties. That warning is addressed to them to apprise them that if they do these things they will have to undergo the penal consequences by the statute or by the law of nations in that behalf imposed or denounced. In those cases in which the statute is silent the government are powerless and the law of nations comes in. "The law of nations exposes such persons to have their ships seized and their goods taken and subjected to confiscation, and it further deprives them of the right to look to the government of their own country for any protection. And this principle of non-interference in things which the law does not enable the government to deal with, so far from being a violation of the duty of neutrality-which the government are sincerely anxious to comply with-is in accordance with all the principles which have been laid down by jurists, and more especially by the great jurists of the United States of America."* Some writers question the propriety of the neutral government limiting its action to a mere warning against contraband trade, and would make it one of the duties of neutrality to prevent it altogether. Phillimore holds that articles of contraband cannot lawfully be sold to a belligerent even within the territory of the neutral State. "If it be the true character of the neutral to abstain from every act which may better or worsen the condition of a belligerent, the unlawfulness of any such sale is a necessary conclusion from these premises. For what does it matter where the neutral supplies one belligerent with the means of attacking another? How does the question of the locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one belligerent or the injury to the other accruing from this act of the alleged neutral ?”† He would place the sale of contraband to a belligerent, then, on the same footing with enlisting in his service. Professor Woolsey states the general rule of non-interference with contraband trade by neutral governments, but says: "All admit that when the act of exportation from the neutral territory begins, an act of violation of neutrality on the part of some one commences. The question may still be asked whether the government of the neutral is not bound to interfere when it has evidence that its subjects are thus aiding a belligerent against a friend, and is not bound also to acquaint itself with such evil intentions. In the present state of the law of nations this is not felt to be obligatory, although such trade is immoral, and tends to produce lasting national animosities. A juster and humaner policy would make all innocent trade with the enemy free, and require a neutral to pass stringent and effectual laws against contraband trade."‡ *Lawrence's Wheaton, pp. 813-14, n. 1 Phillimore, Vol. III, Secs. 230-233. Phillimore on sale of con traband goods. "A neutral merchant ought not to forget that the duties which the law of nations imposes on him flow from the same principle which ought to control the action of his government as a neutral government; that, where he supplies to the enemy of a belligerent munitions or other articles contraband of war, or relieves, with provisions or otherwise, a blockaded port, he makes himself personally a party to a war in which, as a neutral, he has no right to engage; that, under such circumstances, his property is justly treated as the property of an enemy; and that the observance of those rules which the law of nations prescribes for his conduct is a high moral duty."* *Blatchford, Prize Cases, p. 412. The Stephen Hart. PART VI. THE RIGHT OF SEARCH. the right. No duty entrusted to a naval officer is more delicate than the Sec. 1. Origin of exercise of the belligerent right of search. To avoid all just cause of offence to the neutral, and at the same time to take measures necessary to protect the interests of his government, requires sound judgment, with a due consideration for the rights and feelings of others. Under any circumstances the exercise of this right will be felt as an annoyance by the neutral, and it is the duty of the officer enforcing it to make this annoyance as little as possible, while insisting upon obtaining its full ends. The right itself rests upon the necessity of self-preservation; and although its exercise has sometimes been questioned by neutrals, and efforts made to resist it, as by the conventions of armed neutrality of the Northern European nations in 1780 and 1801, such efforts have not been successful, and the right of search is to-day regarded as one of the unquestioned principles of international law. "In order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as the assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty. All writers upon the law of nations, and the highest authorities, acknowledge the right in time of war as resting on sound principles of public jurisprudence, and upon the institutes and practice of all great maritime powers.' this right. "The right of visitation and search of neutral vessels at sea Importance of is a belligerent right, essential to the exercise of the right of *Kent, p. 159. Sec. 2. Extent of this right. capturing enemy's property, contraband of war, and vessels committing a breach of blockade. Even if the right of capturing enemy's property be ever so strictly limited, and the rule of free ships free goods be adopted, the right of visitation and search is essential, in order to determine whether the ships themselves are neutral, and documented as such, according to the law of nations and treaties; for, as Bynkershoek observes, 'it is lawful to detain a neutral vessel in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves on board, whether she is really neutral.' Indeed, it seems that the practice of maritime captures could not exist without it. Accordingly the text-writers generally concur in recognizing the existence of this right. "The international law on this subject is ably summed up by Sir W. Scott, in the case of the Maria, where the exercise of the right was attempted to be resisted by the interposition of a convoy of Swedish ships of war. In delivering the judgment of the High Court of Admiralty in that memorable case, this learned civilian lays down the three following principles of law: "1. That the right of visiting and searching merchant ships on the high seas, whatever be the ships, the cargoes, the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. "2. That the authority of the neutral sovereign being forcibly interposed, cannot legally vary the rights of a lawfully commissioned belligerent cruiser. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it.' 3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search."* The agreement among text-writers as to the right of search extends no further than its bare existence, a wide difference being found in their opinions as to the objects to be attained and the extent to which a search may be carried. "The right of search is by its nature confined within narrow limits, for it is merely a method of ascertaining that certain specific violations of right are not taking place, and would *Dana's Wheaton, p. 689. |