Law, pt. 4, ch. 3, § 24, note; Bello, Derecho Internacional, pt. 2, cap. 8, § 4; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2; Ortolon, Diplomatie de la Mer, liv. 3, ch. 6; De Cussy, Droit Maritime, liv. 1, tit 3, § 14; The Staadt Embden, 1 Rob, Rep., p. 26; The Sarah Christina, 1 Rob. Rep., p. 241; The Maria, 1 Rob, Rep., p. 372; The Appollo, 4 Rob. Rep., p. 158; The Christina Maria, 4 Rob. Rep.. p. 166; The Twee Juffrowen, 4 Rob. Rep., p. 244; The Evert, 4 Rob. Rep., p. 354; The Nostra Signora, 5 Rob. Rep., p. 97.)

§ 23. The probable use of articles is inferred from their known destination. This rule seems neither unjust nor unequal. The remarks of Chancellor Kent on this point are exceedingly clear and appropriate. "The most important distinction," he says, "is whether the articles were intended for the ordinary uses of life, or even for mercantile ship's use, or whether they were going with a highly probable destination to military use. The nature and quality of the port to which the articles are going, is not an irrational test. If the port be a general commercial one, it is presumed the articles are intended for civil use, though occasionally a ship of war may be constructed in that port. But, if the great predominent character of that port, like Brest in France, or Porsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is possible that the articles might have been applied to civil consumption. As it is impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule, which deduces the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful." The same principle is laid down by Sir William Scott, but it does not seem to have been followed out in all his decisions. It applies equally to unwrought materials and ordinary naval stores. If, when they are destined to a commercial port, it is a just presumption that they are intended solely for civil use, it is evident that this presumption exists in all cases when such is their destination, from whatever country they may be

exported, and hence, in all such cases, the presumption should be admitted for their protection, as it is for their condemnation when destined to a port of naval equipment. The distinction in favor of those which are the produce of the country from which they are imported, does not seem to be well founded. (Kent, Com. on Am. Law, vol. 1, p. 140; Duer, On Insurance, vol. 1, p. 637; The Commercen, 1 Wheaton, Rep., p. 38; Heffter, Droit International, § 160; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15.)

§ 24. It is universally admitted, that provisions (commeatus belli) are not, in their own nature, contraband. But while some contend that they never can become so under any circumstances, others hold, (and such is the uniform practice of the British admiralty,) that they may become liable to condemnation by their special destination and intended use. When they are destined to the immediate supply of the military or naval forces of the enemy, the aid thus intended to be given for the prosecution of the war, is so direct and important that the act of transportation is peculiarly noxious, and they are condemned without hesitation. It would seem, from the decision of the supreme court of the United States, in the case of The Commercen, that where the real object is the supply of the enemy's forces, the voyage is illegal, even where the port of destination is neutral in its character. Nor, by the established doctrine of the English admiralty, is it in all cases neccessary, in order to make provisions contraband, that the destination to the use of the enemy's military or naval forces should be certain. The rule of ancipitis usus is here applied, which deduces the final use from the immediate destination. If destined to a general commercial port, they are presumed to be for civil use, but if to a port whose predominent character is that of naval construction and equipment, they are presumed to be for military use. But such destination alone is not, as a general rule, sufficient to produce a condemnation. It must further appear that the provisions were, from their nature and quality, adapted to military use; since, otherwise, there would be no basis for the presumption that they would have been applied to that use, had their arrival been permitted. Thus, where cheeses, intercepted as contraband, were destined to Brest, a port

notoriously of naval equipment, evidence was required by Sir William Scott of their fitness for naval use. (Duer, On Insurance, vol. 1, pp. 638, 639; The Commercen, 2 Gallis. Rep., p. 264; 1 Wheaton, Rep., p. 382; The Jonge Margaretha, 1 Rob. Rep., p. 196; The Haabet, 2 Rob. Rep., p. 182; The Zelden Rust, 6 Rob. Rep., p. 93; The Ranger. 6 Rob. Rep., p. 126; The Edward, 4 Rob. Rep., p. 68; Polson, Law of Nations, p. 63; Ortolan, Diplomatie de la Mer, liv. 3, ch. 6; Manning, Law of Nations, pp. 299, et. seq.; Pistoye et Duverdy, Traité des Prises, tit. 6, ch. 2, sec. 3; Maisonnaire v. Keating, 2 Gallis. Rep., p. 334; Heffter, Droit International, § 160; Bello, Derecho Internacional, pt. 2, cap. 8 §4; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15; Hautefeuille, Des Nations Neutres, tit. 8, sec. 2; Lampredi, Commerce des Neutres, pt. 1, §§ 7, 9.

§ 25. The ancient custom of preëmption, by the belligerent, of the property of the subjects of another state, as practiced about the middle of the seventeenth century, had a much wider operation and very different meaning than is now attributed to it. By the French ordonnance of 1584, article sixty-nine, contraband was subjected, not to confiscation, but to preëmption. But, according to the modern use of this term, it is applied to articles not subject to confiscation, as contraband in themselves, but being ambigui usûs are made subject to seizure, and to be condemned to the use of the belligerent, he paying their value with a reasonable mercantile profit,which, by the practice of the British prize courts, is usually fixed at ten per cent. If the goods so seized are contraband, the carrying of them is a criminal act, punishable by confiscation or any milder penalty which the belligerent may see fit to impose; but if not contraband, by the law of nations, they are not liable to preëmption. The question, therefore, resolves itself into one of contraband, upon which opinions are somewhat divided. (Wildman, Int. Law, vol. 2, pp. 219, et seq.; Polson, Law of Nations, p. 64; Phillimore, On Int. Law, vol. 3, §§ 267-270; Manning, Law of Nations, pp. 313, et seq.; Ward, Of Contraband, p. 196; The Sarah Christina, 1 Rob. Rep., p. 241; The Haabet, 2 Rob. Rep., p. 174; Heffter, Droit International, § 161; Bello, Derecho Internacional, pt. 2, cap. 8, § 4; Hautefeuille, Des Nations Neutres, tit. 7, ch. 2; De Cussy, Droit Maritime, liv. 1, tit. 3, § 18.)

§ 26. But the British admiralty, and especially Sir William Scott, went much further, and sustained the capture of provisions which were not even probably destined to military use, not, indeed, confiscating as contraband of war on the ground of their being ambigui usûs, but condemning them to the use of the British government, on the payment of a price equivalent to their value, or rather, their cost and the specified mercantile profit of ten per cent. A similar rule of preëmption was applied by Great Britian to certain native commodities of neutral states, found in neutral vessels, and required by her for naval purposes. In some cases, where this rule of preëmption, or pretended right of purchase, was exercised, it was not claimed that the goods so captured and condemned to a forced sale, were contraband, even on the ground of being ambigui usûs; but the right to preëmpt them was claimed, because "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." It was not pretended, as, indeed, it could not have been, that the claim thus asserted by some of the maritime states of Europe a century before, was generally admitted, and adopted as a rule of international law, or that the practice ever had received any such sanction as to make it binding upon neutrals. (Duer, On Insurance, vol. 1, p. 640; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Kent, Com. on Am. Law, vol. 1, pp. 138, 139; Phillimore, On Int. Law, vol. 3, §§ 267270; Polson, Law of Nations, p. 64; Wildman, Int. Law, vol. 2, pp. 219, et seq.; The Haabet, 2 Rob. Rep., p. 182; The Sarah Christina, 1 Rob. Rep., p. 237; Manning, Law of Nations, p. 316; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; Heffter, Droit International, § 161; Hautefeuille, Des Nations Neutres, tit. 7, ch. 2; De Cussy, Droit Maritime, liv. 1, tit. 3, §§ 14, 18.)

§ 27. The arguments adduced in favor of the British right of preemption failed to convince its opponents of its justness. or legality, and its enforcement was, at the time, most strenuously opposed by the government of the United States and the neutral powers of Europe. Nor did this opposition cease with the war in which the rule had originated, or, at least, been called into operation. Since then, text-writers

have most emphatically denied the legality of the rule, and successfully attacked the arguments by which it was attempted to be defended. Some British writers still advocate it as a principle of law, but there is little probability that in any future war the British government will attempt to exercise the right of preemption, except upon goods manifestly contraband of war. (De Cussy, Droit Maritime, liv. 1, tit. 3, §§ 14, 15; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 24; Duer, On Insurance, vol. 1, p. 640; Kent, Com. on Am. Law, vol. 1, pp. 138, 139; Waite, State Papers, vol. 1, pp. 393, 398; Manning, Law of Nations, pp. 313-316; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; Heffter, Droit International, § 161.)

§ 28. Arnould lays down the rule, that all insurances on articles contraband of war are wholly void, and incapable of being enforced in the courts of the belligerent country. But if effected by or for neutrals, and sought to be enforced in the court of a neutral state, the case would be different, for it is not deemed unlawful in a neutral, by his own government, to be engaged in a contraband trade. The insurance, therefore, by a neutral, of articles contraband of war, being per se a valid contract, may be enforced in the courts of the neutral country, provided the nature of the trade and of the goods was disclosed to the underwriter, or provided there be just ground, from the circumstances of the trade, or otherwise, to presume that he was duly informed thereof. Mr. Duer contends that the carrying of contraband, being contrary to the general law of nations, renders the voyage prohibited and illegal, and hence, that an insurance of the ship on such a voyage cannot be sustained. We copy a portion of his remarks: "An insurance," he says, "upon goods liable to confiscation, as contraband of war, if made in the belligerent country whose rights are violated, it is admitted, by all writers, is wholly void; nor do I perceive any reason for doubting that an insurance upon every other subject or interest, liable to be involved in the same penalty, is equally invalid. Hence, a policy upon the freight of the contraband articles, upon other goods, the property of the same owner, and upon the ship, when subject to condemnation, is, in all cases, an illegal contract; for, although the penalty to which the subject is liable may not always be enforced in a court of admiralty, that court