had been committed, whereas he should have applied the Haitian law, which, like the law of the United States (R. S. 5376) defines the slave trade as piracy. Pelletier, having been engaged in the slave trade, was considered not entitled to protection and his punishment having been in no way unusual in view of the heinous character of the offense, Mr. Bayard recommended that the United States decline. to enforce the award already made in Pelletier's favor.1 Lord Palmerston in a letter to Mr. Druey, president of the Swiss confederation, Oct. 16, 1859, stated that a British subject "may so conduct himself either by committing piracy or in other ways as to forfeit all claim to the protection of the British Government." 2

§ 351. Violation of Rights of Belligerents. Contraband Carriage, Blockade Running, etc.

The offenses against international law of the second class, punishable not by municipal law but by the state aggrieved by the censurable act are the carriage of contraband, blockade running, resistance to the right of visit and search, or similar violation of a belligerent right. These acts are, of course, only possible in time of war, and the belligerents whose rights are thereby prejudiced have by international law the right to punish them. Neutral states are not bound to prevent their subjects from engaging in the carriage of contraband or in blockade running, and incur no penalty, moral or other. The individual, guilty of the act, forfeits the protection of his national government, and the latter surrenders its subjects to the penalties prescribed by international law and enforced by the belligerent. As a general rule, the penalty is confiscation of the property involved in the act.

The law of prize consists largely of the rules enforced by belligerents against neutral vessels and property violating belligerent interests, from which the national governments of the owners of the property have withdrawn their protection. Holland has expressed the principle as follows:

1 For. Rel., 1887, pp. 606-607.

2 Ibid., 1873, II, 1348-1349.

3

Holland, Studies in International Law, Oxford, 1898, pp. 124-125. See the British Neutrality Proclamation during the Russo-Japanese War, censuring contra

"The neutral power is under no obligation to prevent its subjects from engaging in the running of blockades, in shipping or carrying contraband, or in carrying troops or despatches for one of the belligerents; but, on the other hand, neutral subjects so engaged can expect no protection from their own government against such customary penalties as may be imposed upon their conduct by the belligerent who is aggrieved by it."

Presidents of the United States have at various times by proclamation warned citizens of the United States that by carrying contraband they incur the penalty of confiscation and could not receive the protection of the United States.1 We are not concerned with the various proclamations of presidents, such as the recent proclamations of Presidents Taft and Wilson prohibiting the exportation of arms into Mexico, by which the obligations of neutrals have been increased in the interests of public policy and the peace of contiguous neighbors. Violation of such a proclamation would incur all the penalties of a violation. of national law together with a forfeiture of diplomatic protection.2

The origin of the word contraband (contrabannum) indicates its unlawful character. Sir Travers Twiss has traced its first use in the treaty of Southampton between England and the United Provinces in 1625.3

We cannot enter here into a complete discussion of the law of contraband. Confiscation of ship and cargo engaged in such trade is subject to various rules. There is a difference between the AngloAmerican practice and the continental practice, although in the Declaration of London (1909) an attempt was made to reconcile the diver

band carriage by British subjects, criticized in Holland's Letters to the Times upon War and Neutrality. Note in 26 Juridical Rev. (May, 1914), 238.

1 President Washington in the Neutrality Proclamation, April 22, 1793, Am. St. Pap., For. Rel., I, 140; Pres. Grant in the proclamation of August 22, 1870 in the Franco-German law. On the whole subject of contraband see a recent article by John Bassett Moore, printed in the Proceedings of the American Philosophical Society, v. 51, No. 203, pp. 18-49.

2 U. S. v. Chavez, 228 U. S. 525.

Twiss, Law of Nations, War, § 121.

See Bentwich, The Declaration of London, 1911; Westlake, International law, v. 2, ch. 10, Cambridge, 1907; Oppenheim, International law, v. 2, pt. III, ch. 4; Moore's Dig. VII, ch. 26. For an extensive bibliography on contraband, see Hershey, Essentials of International public law, New York, 1912, pp. 504-505.

gencies while continuing the threefold division of Grotius into absolute, conditional, and non-contraband articles. The penalties prescribed by the British Admiralty Manual are as follows:

83. "The vessel which carries [contraband] goods, if not owned by the owner of such goods, is not confiscated but forfeits her freight for such goods and all right to expenses the result of her detention.

85. "The penalty for carrying contraband goods with simulated papers, or in disregard of express stipulations by treaty, is confiscation not only of the contraband goods but also of the vessel, and of any interest which her owner has in the rest of the cargo.

87. "A vessel which is herself contraband is liable to be confiscated, together with such part of her cargo as belongs to her owner."

The vessel is also confiscated if she resists capture or search, or if her owner is privy to the carriage of contraband goods though not himself their owner. In Germany and Denmark the ship may be confiscated if all her cargo, and in France if three-fourths of her cargo is contraband, and according to the Italian maritime code if any part of her cargo is confiscable contraband.1

The Declaration of London, which was not accepted by Great Britain, has been ratified by a number of continental countries. Its non-acceptance by all the signatories has rendered it ineffective during the European War, although it is constantly invoked as the standard of modern rules. It prescribes the following penalties:

"Contraband goods are liable to condemnation." (Art. 39.)

"The confiscation of the vessel carrying contraband is allowed, if the contraband forms, reckoned either by value, by weight, by volume, or by freight, more than half the cargo." (Art. 40.)

"Goods which belong to the owner of the contraband and which are on board the same vessel are liable to condemnation." (Art. 42.) The Supreme Court and the Court of Claims have on several occasions dealt with the penalties of contraband. In the case of the Brig Lucy, the Court of Claims laid down the rule that where the owners

1 Westlake, International law, v. 2, pp. 250-251.

2 Brig Lucy v. U. S., 37 Ct. Cl. 97; see also the Schooner Betsy, 39 Ct. Cl. 452 (where false destination of goods, contraband if destined to belligerent port, innocent, otherwise, justified confiscation); see also Haigh v. U. S. (The Bermuda), 3 Wall. 514; Carrington v. Merchants' Ins. Co., 8 Peters, 495.

of a vessel were the owners of the cargo, the vessel as well as the cargo was subject to confiscation; and where the vessel carrying contraband was falsely documented, or cleared for a false destination, or was guilty of fraud, the liability to confiscation attended the entire voyage, that is to say, from the home port back to the home port and to the cargo on the return voyage, though it might be innocent. If there is no fraud on the outward voyage, such as false destination, or false papers, the carrying of contraband does not affect the condition of the vessel on her return voyage.1 In one case it was held that where a substantial part of the cargo was contraband, the presumption was that the whole cargo was to aid a belligerent and justified a seizure of the whole.2 Knowledge on the part of officers and owners that contraband articles are on board subjects the vessel itself to confiscation. A mere false destination of a vessel, where the cargo was innocent and the real destination is a non-blockaded, though belligerent port, does not subject the vessel or cargo to condemnation. Contraband articles contaminate the whole cargo belonging to the same owner, and all his property on board, contraband and non-contraband, is subject to confiscation.5

The penalties of blockade running are in many respects similar to those incurred for carrying contraband. An incident of the operations of a siege is usually the prevention of communication between the besieged place and the outside world. Every attempt of neutrals to cross the line is an interference with a belligerent right and is repressed by the besiegers, without right of complaint by the national government of the blockade-runner." The Declaration of London prescribes condemnation of the vessel guilty of violation of blockade. The cargo is also condemned, unless it is proven that at the time the goods were shipped the shipper neither knew nor could have known

1 The Sloop Ralph, 39 Ct. Cl. 204.

2 The Schooner Atlantic, 37 Ct. Cl. 17.

3 Ibid., 39 Ct. Cl. 193.

4 Schooner Betsey and Polly v. U. S., 38 Ct. Cl. 30 (provided of couse she is properly documented and otherwise carries the indicia of neutrality).

5 The Peterhoff v. U. S., 5 Wall. 28, dictum.

6 Westlake, op. cit., v. 2, ch. IX, 221 et seq.; an extensive bibliography on blockade is to be found in Hershey, Essentials of international public law, 488.

of the intent to violate the blockade.1 Knowledge of the blockade. itself is an essential element of the offense. Thus, the Declaration provides:

"The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade made in sufficient time to the Power to which such port belongs." (Art. 15.) 2

Several cases under the Abandoned or Captured Property Act have brought up interesting points of law in connection with the effect of attempts to avoid capture. In a few early cases, reported principally in volumes 3 and 4 of the Court of Claims Reports, that court held that the purchase of property in immediate danger of capture as lawful booty was in "fraud of the act" and therefore invalid and such property being subsequently captured, the purchaser could not recover the proceeds from the Treasury.

In Klein's case, however,3 the Supreme Court decided that the title to captured property did not pass to and become indefeasible in the United States by capture. The Court of Claims then, following this decision, held their previous decisions erroneous to the effect that the purchase of cotton and other property on the eve of capture was invalid.4

Similarly, the colorable transfer or fictitious sale of an American vessel to the British flag in order to prevent its capture by confederate cruisers was held not to operate as a forfeiture of United States protection when the vessel was nevertheless captured by the Alabama as an American ship and as property of American owners, because either from the invalidity of the fictitious sale, or as mortgagees in possession, the claimant's property was under the protection of the United States.5

1 Declaration of London, art. 21. See Higgins, A. P., The Hague Conferences and other International Conferences, Cambridge, 1909, Renault's Report (accompanying the Declaration), 582.

Higgins, op. cit., Renault's Report, 578. On the Anglo-American doctrine of constructive knowledge see the Neptunus (1799), 2 C. Rob. 110.

3 Klein v. The United States, 13 Wall. 128, 7 Ct. Cl. 240.

4 Fernandez v. The United States, 7 Ct. Cl. 541.

5 Pike and Stephens et al. (case of the Texan Star) v. The United States, Act of June 23, 1874, distribution of Geneva Award, Moore's Arb. 2379.