tent that the Itata as a war vessel should in any manner be employed to cruise or commit hostilities against the government of Chile, with whom the United States were then at peace.

*

Having reached the conclusion that the evidence in this case is not sufficient to justify a decree of forfeiture against the Itata, it is unnecessary to discuss the effect of the subsequent recognition by the United States of the provisional government as the lawful government of Chile, and upon that question we express no opinion.

* * *

The judgment of the District Court, in both cases, is affirmed. HANFORD, District Judge (concurring). While the case is founded upon a municipal law, it requires consideration of international relations and comity. The purpose of the statute is to maintain peace between other countries and ours on terms of fairness and justice by prohibiting the preparation within this country of hostile expeditions against other nations. Section 5283, Rev. St., does not make the fitting out and arming of a vessel at a port of the United States unlawful unless it be coupled with specified intents or purposes, one of which is that the vessel, after being so fitted out and armed, "shall be employed * to cruise or commit hostilities against the subjects, citizens, or property of" a foreign prince, state, colony, district, or people. The libel of information in this case charges that certain persons did unlawfully fit out and arm the Itata with intent that she should be employed to cruise and commit hostilities against the republic of Chile. On this point there is an issue, and a finding of the truth of the charge is indispensable to a sufficient basis for a lawful decree in favor of the United States. It is a strange anomaly of the case that this issue is made by the republic of Chile. The acts whereby the vessel has become forfeited, as the libel of information alleges, if criminal at all, are so because designed to do harm to the government of Chile; and in the very suit in which it is sought to have the forfeiture adjudged for said cause that government has intervened, claiming a right of property in the vessel, and by its answer has assumed responsibility for the acts alleged to be criminal, and avows that all the persons who participated in said acts, instead of being enemies, are and were its faithful defenders. The bond given for the release of the vessel which is now held in place of the vessel was given in its behalf, so that the penalty in case of a decree in favor of the United States must fall upon an independent nation, and that nation the one for the sake of whose friendship our government has taken the pains to arrest the Itata and now prosecute this case.

It is said that the case should be determined according to the facts existing at the time of the occurrences, and that, if the Itata was then in the hands of insurgents, whose purpose was to employ her as a transport in making war upon the established government of Chile, acts of the insurgent forces in violation of a statute of the

United States do not become purged of criminality by the subsequent success of the insurrectionary enterprise. It is unnecessary to admit or controvert the soundness of this proposition, because it does not fit the facts of the case. It is not applicable, for the reason that the Congressional party, instead of being an organization of rebels against the government of Chile, was in fact composed of and controlled by the legislative branch of the national government, and was supported by a considerable part of its military and naval forces. The object of the Congressional party was not revolution, but the preservation of the government by deposing President Balmaceda for maladministration of his office. Balmaceda was not the government. He was merely the highest officer and head of the government. The struggle, therefore, was not between the government and a faction, but between the different departments of the government. While it continued the condition of affairs in Chile was similar to what might have been brought about in the United States if a sufficient number of senators had voted for the impeachment of President Andrew Johnson, and the vote had been followed by an attempt on his part to forcibly resist removal from office. The right to determine finally every question involved in that struggle belonged to the people of Chile, and their decision must be accepted everywhere as conclusive. It is now an historical fact that the Congressional party, in whose service the Itata was employed, represented the will and sovereignty of the Chilean people. This court is bound, in deciding the case, to take notice of the important facts of history. We cannot be expected to attempt a retrial of the question of right or wrong in what the people in Chile have done for themselves.

By the foregoing considerations I have been led to the conclusion that the accusation against the Itata has not been sustained. The contrary is established, and I think that the decision of this court affirming the judgment of dismissal rendered by the District Court ought to be placed upon the ground that the vessel was not intended for service against the republic of Chile.

CHAPTER XVII

NEUTRAL TRADE WITH BELLIGERENTS

SECTION 1.-GENERAL PRINCIPLE

Ex parte CHAVASSE.

In re GRAZEBROOK.

(Court of Appeal in Bankruptcy, 1865. 34 L. J. R. (N. S.) 17.)

This was an appeal from an order of Mr. Commissioner Perry, of the Liverpool District Court of Bankruptcy, dismissing with costs a petition by which the petitioners sought to obtain a share of the proceeds of certain cotton, the result of a successful running of the blockade of the ports of the Confederate States of North America.

The circumstances were as follows: William Joshua Grazebrook, the bankrupt, for some years prior to his bankruptcy carried on the business of a merchant and commission-agent at Liverpool; and in 1862 he arranged with Horace Chavasse, a sword-manufacturer of Birmingham, for the purchase, on their joint account, of large quantities of arms and ammunition, to be consigned to Mr. Thomas Barrett Power, then carrying on business as a merchant in the Confederate States to be sold by him for the joint benefit of Messrs. Chavasse and Grazebrook. Chavasse was to purchase the arms and ammunition on the joint account, and to draw bills on Grazebrook for a portion of the price, such bills to be from time to time renewed until remittances should be received from Power. The goods were purchased in the individual name of Chavasse, and were sent and consigned by him to Messrs. Lawrence & Co., the charterers, from Messrs. Pearson & Co. of Hull, the owners of the steamer Modern Greece, then lying at that port, for shipment on board that vessel bound for any port in the Confederate States which the supercargo of the vessel might think it safe

to enter.

The goods were duly shipped on board the Modern Greece, and she sailed from Hull about the 20th of April, 1862. The ship was wrecked off Wilmington in North Carolina, and a considerable portion of her cargo was totally lost; such portions, however, of the joint property of Chavasse and Grazebrook as were saved from the wreck were cleared and sold. About £2,000, part of the money realized by the

sale, was remitted to Grazebrook, and the residue was invested in the purchase of cotton.

None of the bills drawn by Chavasse upon and accepted by Grazebrook were honoured at maturity. Grazebrook was adjudicated bankrupt on the 17th of June, 1863; and on the 19th of February, 1864, Chavasse executed a statutory deed of assignment for the benefit of his creditors, which was duly registered under the 192d section of the Bankruptcy Act, 1861.

No part of the money produced by the sale, or of the cotton in which part of the money was invested, was ever paid or remitted to Chavasse, and the trustees of his deed of assignment presented their petition seeking to have the same apportioned. The petition was dismissed with costs by the commissioner, on the ground of the illegality of the contract. Hence the present appeal. * * *

The LORD CHANCELLOR [WESTBURY]. In the view of international law, the commerce of nations is perfectly free and unrestricted. The subjects of each nation have a right to interchange the products of labour with the inhabitants of every other country. If hostilities occur between two nations, and they become belligerents, neither belligerent has a right to impose, or to require a neutral government to impose, any restrictions on the commerce of its subjects. The belligerent power certainly acquires certain rights which are given to it by international law. One of these is the right to arrest and capture, when found on the sea, the high road of nations, any munitions of war, which are destined and in the act of being transported in a neutral ship to its enemy. This right, which the laws of war give to a belligerent for his protection, does not involve as a consequence that the act of the neutral subject in so transporting munitions of war to a belligerent country is either a personal offence against the belligerent captor, or an act which gives him any ground of complaint either against the neutral trader personally or against the government of which he is a subject. The title of the belligerent is limited entirely to the right of seizing and condemning as lawful prize the contraband articles. He has no right to inflict any punishment on the neutral trader, or to make his act a ground of representation or complaint against the neutral state of which he is a subject. In fact, the act of the neutral trader in transporting munitions of war to the belligerent country is quite lawful, and the act of the other belligerent in seizing and appropriating the contraband articles is equally lawful. Their conflicting rights are co-existent, and the right of the one party does not render the act of the other party wrongful or illegal.

There is, however, much incorrectness of expression in some writers on the subject, who, in consequence of this right of the belligerent to seize in transitu munitions of war while being conveyed by a neutral to his enemy, speak of this act of transport by the neutral as un

SCOTT INT. LAW-58

lawful and prohibited commerce. But this commerce, which was perfectly lawful for the neutral with either belligerent country before the war, is not made by the war unlawful or capable of being prohibited by both or either of the belligerents; and all that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the belligerent power for whose enemy the contraband is destined. That the act of the neutral merchant is in itself innocent is plain from the circumstance that the belligerent captor cannot visit it with any penal consequences beyond his judicial condemnation of the ship and cargo, nor can he make it the subject of complaint. This is well explained by Vattel in the following passage. Speaking as a belligerent power, he says: "Quand j'ai notifié aux nations neutres ma déclaration de guerre à tel ou tel peuple, si elles veulent s'exposer à lui porter des choses qui servent à la guerre, elles n'auront pas sujet de se plaindre au cas que leurs marchandises tombent dans mes mains, de même que je ne leur déclare pas la guerre pour avoir tenté de les porter. Elles souffrent, il est vrai, d'une guerre à laquelle elles n'ont point de part, mais c'est par accident. Je ne m'oppose point à leur droit-j'use seulement du mien, et si nos droits se croisent et se nuisent réciproquement, c'est par l'effet d'une nécessité inévitable. Ce conflit arrive tous les jours dans la guerre." Liv. 3, c. 7, § 111. Vattel must here be considered as speaking of the acts of the subjects of a neutral power, and not of the neutral government itself, for the supplying of warlike stores to a belligerent by a neutral state would clearly be a breach of neutrality.

The same doctrine as to the freedom of the commerce of the neutral subject is more explicitly stated by Mr. Chancellor Kent, in the first volume of his Commentaries, p. 142, and was most distinctly affirmed in a celebrated decision-The Santissima Trinidad-of the Supreme Court of the United States. The language of Chancellor Kent is clear and comprehensive: "It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shewn on the part of the United States that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and

SCOTT INT.LAW