blockade, and that the invalidity continues so long as this liability exists. "Where the ship is insured upon time," says Duer, "although the contract may not be void in its origin, it may be rendered so, by the contravention of a blockade, for the particular voyage to which the legal penalty attaches; but where the voyage has been terminated, and the liability to capture no longer exists, it seems probable that the obligation of the contract would be held to revive. The effect of a supervening war, by which the property insured is rendered that of an enemy, according to Lord Ellenborough, is to exonerate the insurers from all the risks of the policy during the continuance of the hostilities. This language plainly implies that the contract is not annulled, but merely suspended by the operation of the war, and that the return of peace, should the policy not have expired by its own terms, will restore its life and obligatory force. The doctrine seems, in itself, just and reasonable, and, in cases where the policy is not so entire as to preclude any separation of its risks, may be applied, with equal justice, to every case of supervening illegality; that is, an illegality arising after the commencement of the risks." Such seems to be the rule established by the most recent decisions of the courts of common law in England, although the opposite rule has been assumed in the United States. (Duer, On Insurance, vol. 1, pp. 689, 690, and note 2, pp. 463–478; Brandon v. Curling, 4 East. Rep., p. 410; Harratt v. Wise, 9 Barn. and Cres., p. 712; Naylor v. Taylor, 9 Barn. and Cres., p. 718; Medeiras v. Hill, 8 Bing. Rep., p. 231.)

§ 39. It is deemed proper, before concluding this chapter, to allude to Hautefeuille's theory of blockades, as his views differ from those of the generality of writers on international law, and especially from the decisions of English and American jurists. M. Hautefeuille considers the right of maritime blockade to result from the right of conquest, by the successful belligerent's getting military possession of an enemy's port, or of a belt of territorial sea surrounding or commanding it, precisely as he would of a belt of land around a fort in case of a siege. The conqueror, being thus in possession of a portion of an enemy's territory, may, so long as he retains that possession, extend over it his own laws and jurisdiction. He

may prohibit foreigners from entering such territory, either for commerce or any other purpose, or he may permit them to enter on such terms as he may see fit to impose, precisely as he might do if it were a part of his most ancient dominion. The right of blockade, therefore, extends over only so much of the sea as is, in international law, regarded as territorial and liable to conquest, although the blockading force may be stationed outside of the territorial limit, and consequently on the high sea, which can never be subjected to local jurisdiction. In order to blockade a maritime port, or territorial sea, it is necessary that the blockading force acquire the sovereignty of it, and actually hold it in possession. This definition of a blockade gives rise to very few questions with respect to its establishment or continuance, nor can there be much dispute about what is to be regarded as a violation of it. It is a visible, material fact, and any notification of that fact would be unnecessary and superfluous, for neutrals can see the conqueror's possession, and readily ascertain from him whether or not they are permitted to enter, and if so, upon what terms. So long as they remain without the line of territorial jurisdiction they violate no rights of blockade. If they pass, or attempt to pass, against the will of the new sovereign, this magic line, they become liable to capture; but they must be seized while within the territorial limits, for they cannot be pursued upon the high seas, as no rights of blockade can extend beyond the sovereignty which was acquired by conquest and is continued by actual possession. We think Hautefeuille has confounded the rights of blockade with the rights of military occupation, which are not only distinct in their nature, but essentially different in their legal consequences. Nevertheless, his views are worthy of attention, and he has maintained them with marked ability. It is not so much our object in this work to discuss theories, or to determine what the law of blockades ought to be, as to ascertain what that law now is, according to the decisions of prize courts, and the opinions of the best writers on international jurisprudence. The rules of maritime war, as now practiced, undoubtedly present some anomalies which cannot be easily reconciled with any abstract theory. (Hautefeuille, Des Nations Neutres, tit. 9; Hautefeuille,

Hist. du Droit Mar. Int., pt. 3, ch. 1, sec. 1; Hubner, Saisie des Batements Neutres, pt. 1, ch. 7; Cocceius, De Jure Belli in Amicos, § 788; Ortolan, Diplomatie de la Mer, liv. 3, ch. 9; Lampredi, Commerce des Neutres, pt. 1, §5; Galiani, De Doveri, etc., cap. 9; Massé, Droit Commercial, liv. 2, ch. 2; Luchesi-Palli, Droit Maritime, p. 180.)

CHAPTER XXIV.

CONTRABAND OF WAR.

CONTENTS.

81. General law of contraband - 2. All contraband articles to be confiscated -23. Ancient rule that cargo affects the ship-84. Modern rule - 25. Cases where ship also is condemned-86. Ordinary penalty not averted by ignorance or force 27. Inception of voyage completes offense - 88, Return voyage-29. If not contraband at time of seizure-10. Transfer of such goods from one port to another - 11. Destination need not be immediate to enemy's port- 12. Case of the Commercen-213. Diffe rences of opinion among text-writers - 14. Views of Grotius and others -15. Of modern publicists-2 16. Ancient treaties and ordinances 17. Modern treaties and ordinances - 18. Conflicting decisions of prize courts 19. There is no fixed universal rule 20. Implements and munitions of war - 21. Manufactured articles-822. Unwrought articles - 23. Intended use deduced from destination - 24. Provisions - ¿ 25. Preemption 26. British rule of preemption 8 27. Contested by other

nations 28. Insurance on articles contraband of war,

§ 1. Having already discussed the general rights and duties of neutrals, and the liability of neutral property to capture and condemnation for violation of the law of sieges and blockades, we will now consider the rules of international law with respect to goods contraband of war. The term contraband (contrabandum, or contra bannum) has been used from time immemorial to express a prohibition of certain kinds of commerce. Such prohibitions are found in the

laws of Justinian, in the decrees of the popes and councils in the time of the crusades, and more especially in those issued by different powers during the wars of the Hanseatic league. The theory of the present law of contraband, however, had its origin in the school of Bologna, but its complete development was coincident with the development of the modern laws of commerce. By this term we now understand a class of articles of commerce which neutrals are prohibited from furnishing to either one of the belligerents, for the reason that, by so doing, injury is done to the other belligerent. To carry on this class of commerce is deemed a violation of neutral duty, inasmuch as it necessarily interferes with the operations of the war by furnishing assistance to the belligerent to whom such prohibited articles are supplied. (Heffter, Droit International, §§ 158, 159; Wheaton Elem. Int. Law, pt. 4, ch. 3, § 24; Kent, Com. on Am. Law, vol. 1, pp. 135–143; Arnold on Insurance, vol. 1, ch. 5, § 4; Duer, on Insurance, vol. 1, pp. 624-643; Jouffroy, Droit Maritime, pp. 102, et seq.; Jacobsen, Seerecht, etc., pp. 667-672; Ortolan, Diplomatie de la Mar., liv. 3, ch. 6; Pando, Derecho Internacional, p. 540; Sartorius, Hanseat. Bund, tome 2, p. 663; Nau Volkerseerecht, §§ 153, et seq.; Hautefeuille, Des Nations Neutres, tit. 8, sec. 1; Pistoye et Duverdy, Traité des Prises, liv. 1, tit. 6, ch. 2, sec. 3; Bello, Derecho Internacional, pt. 2, cap. 8, § 4; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15; Kalterborn, Seerecht, etc., b. 2, p. 413; Poehls, Seerecht, etc., b. 4, p. 1096; Dalloz, Repertoire verb. Prises Maritimes; De Cussy, Droit Maritime, liv. 1, tit. 3, § 14; Lampredi, Commerce Des Neutres, pt. 1, § 7.)

§ 2. There is no difference of opinion with respect to the general rule which prohibits trade in articles contraband of war, whatever may he the extent of disagreement with respect to what articles may properly be regarded as contraband. The noxious articles themselves, (if decided to be contraband,) are invariably condemned, and no defense or plea can save them from confiscation, when their character as contraband, and their destination to a hostile port or country, are admitted or established. But the extent of the penalty, for the carriage of such articles, does not seem to be fixed by any positive or uniform rule; or, at least, the decisions seem to