which they have derived large profits. It may, perhaps, be doubted how far it is possible to reconcile the American decisions with such cases as that of 'Harratt v. Wise' (9 Barn. and Cress., p. 712), where it seems to have been assumed that a policy on a voyage to a blockaded port with knowledge of the blockade was an illegal risk. Nevertheless, Mr. Arnould, the very able English writer on marine insurance, has adopted the American view without reserve. And even Mr. Duer, while attacking the doctrine, admits that the universal Continental practice, including Prussia, Sweden, Italy, Hamburg, Amsterdam, and other places, is in favour of such insurances. All that can be said upon the subject is that in America the law is settled, and in England it is not yet decided. Upon a subject of so much nicety and importance, I forbear to obtrude my own opinion. I am not affiliated to any of the modern associations for 'world-bettering,' whose fundamental doctrine seems to be the necessity for the subversion of all law. I am, therefore, mean-spirited enough to be content not to be wise beyond that which is written.'

I confine my affirmations to that which is settled beyond the reach of controversy-viz., the absolute legality of all manner of trade within the neutral territory, and the absolute irresponsibility of the neutral Government for the traffic of its subjects, whether in the sale or in the transport of contraband.

NOTE.

It is a very singular thing, as I have already observed, that the validity or invalidity of insurance on a contraband voyage should still be a question not absolutely decided by the courts of this country. Since these letters first appeared in the Times newspaper, I have had the satisfaction of receiving the assurance of the concurrence and approbation of the doctrines they attempt to expound from the most eminent practitioners in Westminster Hall. I am especially happy to be able to record the assent of a lawyer than whom the profession counts no sounder

opinion, and who is justly confided with a practice second to none in the profession. In the preceding letter I declined to express an opinion of my own on the important subject to which it refers. But I may now venture to state, on the authority of the gentleman to whom I refer, that the opinion of the profession in this country is completely in accord with the current of the American decisions, and that the advice which has been given to the mercantile community is, that insurances on contraband voyages are valid insurances, capable of being enforced at law.

The grounds, it will be seen, upon which the American decisions are founded are two. The first (which by itself is sufficient to dispose of the question) is, that the transport in contraband is not by the Law of Nations an illegal trade in the sense that it is any violation of law or wrongful act on the part of the neutral. The neutral exercises his right to trade subject only to the adverse right of the belligerent to seize. But neither the one in transporting, nor the other in seizing the merchandise, is guilty of an unlawful act. It is a conflict of rights, and not a case of wrong on either side. This is the view expressed by Kent, and which is completely in accordance with the doctrine of Vattel on this point.

One of the greatest vices of M. Hautefeuille's system is, that he has chosen-following in the wake of the interested and inaccurate sophists of the Armed Neutrality-entirely to deny and set aside the fundamental doctrine of the conflict of rights, which is the real key to the interpretation of the questions which in various shapes arise between belligerents and neutrals. In the place of this doctrine, which is universally adopted by all the older and authoritative publicists, M. Hautefeuille has chosen to substitute his own conception of a primary duty in either party. This unwise and unjustifiable departure from ancient principles has involved him in every department of his work in inextricable confusion. Dr. Phillimore, in a note to the sections of his book, which have been already referred to, seems to grudge M. Hautefeuille the credit of this precious discovery. I should recommend Dr. Phillimore to leave to M. Hautefeuille the sole responsibility of a theory which is absolutely destructive of the established Law of Nations.

In the well-known case of Barker v. Blake (9 East Rep. 292) the masculine intellect of Lord Ellenborough has expounded the true doctrine on this point with his accustomed clearness. That was a case in which the question arose on a policy effected upon enemies' goods carried in a neutral vessel. Without entering into the details, it is sufficient for the present purpose to quote the following passage from the judgement:

:

The American was at liberty to pursue his commerce with France, and to be the carrier of goods for French subjects; at the risk indeed of having his voyage interrupted by the goods being seized; or of the vessel itself, on board of which they were, being detained, or brought into British ports, for the purpose of search: but the mere act of carrying such enemies' goods on board his vessel constituted no violation of neutrality on the part of the American; nor did the arrest and detention of his vessel, for the purpose of search and eventual condemnation of the goods which might be found on board belonging to the enemy, form any breach of our duty towards the American. The indemnity sought under the policy in this case is not an indemnity to an enemy or to a neutral forfeiting his neutrality by an act hostilely done by him against the interests of Great Britain; but an indemnity to a neutral, as such, against the consequences of an act innocently and allowably done by him in the exercise of his own neutral rights; and as innocently and allowably to a certain degree controlled and interrupted on our part, in the exercise of our rights, as belligerents, against enemies' property found on board the ship of a neutral. These rights, though they are in a degree adverse to each other, do not, therefore, in the exercise of them, necessarily place either party in the situation of an enemy to the other. The various competitions for commercial advantage and superiority, which take place between different nations; their mutual exclusions of each other by their respective municipal regulations; are so many acts of adverse policy and conflicting rights, exercised towards each other, but they occur without producing any breach of national amity. And it has never yet, in any instance that I am aware of, been held a breach of implied duty in the subjects of either State to lend their assistance by insurance or otherwise to such rival of exclusive commerce or interests of the other. Cases of express public prohibition, and that degree of assistance to enemies which constitutes a society in war against any particular State, fall of course under a different consideration, and are necessarily to be understood as interdicted subjects of insurance in every country to which this species of contract is known. The voyage and commerce, therefore, in the course of which the vessel carrying the goods insured was in this case engaged, not being either of a hostile description, nor in any other way expressly or impliedly forbidden by the law or policy of this country, the general objection to the plaintiff's recovering at all under this policy of assurance falls to the ground.

It will of course be seen, that though this case fully recog

nises the doctrine of a conflict of rights, and that principle of necessity to which M. Hautefeuille so vehemently objects, it does not by any means conclude the question of insurance on contraband.

Mr. Duer's argument on the other side of the question is however, well worthy of consideration. The writer in the weekly papers to which I have before referred, seems to have been incapable of comprehending the real scope of the American author's remarks. Mr. Duer is much too sound a lawyer ever to have disputed the legality of neutral trade in contraband within the neutral territory. He left all the distinction of such a paradox to M. Hautefeuille and his disciples. What Mr. Duer says is, that the transport of contraband by the neutral must be illegal and wrongful; otherwise by what right can the belligerent be entitled to confiscate it? And in this respect he distinguishes it from such a case as that in Barker v. Blake,' where the enemy's property on board the neutral vessel is not confiscated in the same manner, but the shipowner receives freight, and the transaction is rather that of substituting the belligerent for the original consignees than one of confiscation. There would be more force in this argument if it were not the fact that in former times and in other countries-as, for instance, in France -the hostile goods on board the neutral vessel were subject to confiscation, just as contraband is now by the modern usage. So that the difference between the two cases is rather accidental, and one arising from modification of practice, than one of principle, indicating some distinction of rights. The true answer to Mr. Duer lies in the principle of the conflict of rights. The seizure depends not on the wrongful conduct of the neutral, but on the right of the belligerent. The right of the belligerent may have been at some times and in some cases more or less extensive, according as the usage and law of nations permitted, but the right, whatever it might be in the one party, does not create a wrongfulness in the other.

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Mr. Duer insists, not without some force, on the cases of Harratt v. Wise' (9 Barn. and Cress., 712), Naylor v. Taylor' (ibid., 715), Medeiros v. Hill' (8 Bingh., 231), as proofs that the English courts have decided that a voyage with intent to break a blockade cannot be the subject of a valid

insurance. It is enough to say that those cases, though they may give colour to the opinion, do not decide the point. When the question comes before an English court for judicial decision, the point will be one deserving of the highest consideration, and the result will be of the greatest interest to lawyers. The cases, however, of contraband and breach of blockade are not precisely identical. Possibly the more highly penal consequences of the confiscation of the vessel in the case of breach of blockade might be supposed to make some distinction in this particular case.

The second point laid down in the Massachusetts case is also deserving of notice. It is there said that too wide an extension has been given to the proposition that the law of nations is part of the law of the land.' In a certain and limited sense, this maxim is unquestionably true. Where the Law of Nations prescribes a duty to be performed within the territory, as, for instance, in the case of the immunity of the ambassadors, the law takes cognisance of and enforces the right; but it is quite a different thing when the right is one which does not arise within the territory, and with which our municipal laws have nothing to do. In such a case it seems to be the American doctrine, that the law of the land can take no more notice of such rights than it does of offences against the revenue or other laws of a foreign State. And on this ground they would hold a contraband like a smuggling voyage to be res inter alios acta, with which the municipal law has no concern.

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