40 ·’‘A rsommm anronrna.
as such a transport, to carry military supplies upon accountof the
insurgent government, and for its use and benet. It is urged that
to carry supplies for one belligerent, and to engage in his transport
service, is to take part in his military operations, and is, consequently,
to "commit hostilities" against the other belligerent. It is, doubtless,
true that, according to the established rules of international law, the
transportation of stores and military supplies, even by a neutral, sub-
jects them to capture and contiscationas prize by the other belliger-
ent, (The Commercen, 1 Wheat. 382; The Friendship, 6 C. Rob. 420;
The Orozembo, Id. 430; The Carolina, 4 C. Bob. 256 ;) and if the vessel
herself is in the direct employ of a belligerent, she also, on capture,
will be liable to condemnation.
It is impossible, however, to hold, in this case, that the City of
Mexico was in the employ of the insurgent government or in its posses-
sion. She was never out of the possession of the Provincial Steam-
boat Company, her owners. She was not chartered to the insurgent
government, nor to any of its representatives, but to Mr. Triana, a
merchant of this city; and the charter itself was but a charter of af-
freightment for an outward voyage, and was manifestly for no other
purpose than a commercial venture to carry these military supplies
to Savanilla, for the ultimate use, it may be conceded, of the insur-
gent government, and thence to proceed to Bocas del Toro, to obtain
cargo for her return voyage. But even if Perez &. Co. were to be ig-
nored, and the charter were treated as a charter for the delivery of
the supplies directly to the insurgent government, it would have been
none the less a commercial venture only. The law of nations does
not prohibit the citizens of neutral states from carrying supplies, even
contraband of war, to either belligerent; although those that engage
in it run the risk of search, capture, and confiscation. Neither our
laws, nor our treaties forbid such traffic.
Mr. Webster, in his letter to Mr. Thompson of July 8, 1842, upon
this subject, observes:
"It is not the practice of nations to undertake to prohibit their own sub- ,
jects, by previous laws, from trailicking in articles contraband of war. Such
trade is carried on at the risk of those engaged in it, under the liabilities and
penalties prescribed by the law of nations or particular treaties. If it be true,
therefore, that citizens of the United States have been engaged in a commerce
by which Texas, an enemy of Mexico, has been supplied with arms and mu-
nitions of war, the government of the United States, nevertheless, was not
bound to prevent it,——could not have prevented it without a manifest depart-
ure from the principles of neutrality,-and is in no way answerable for the con-
sequences. The eighteenth article (of the treaty between the United States
and Mexico) enumerates those commodities which shall be regarded as con-
traband of war; but neither that article nor any other imposes on either na-
tion any duty of preventing, by previous regulation, commerce in such articles.
Such commerce is left to its ordinary fate according to the law of nations."
Lawrence’s Wheat. Internat. Law, 813. note 232; 6 Webst. Works. 452; Hall,
Internat. Law, 70; Seton v. Low, 1 Johns. Cas. 1.
Mr. Layard, in the English house of commons in 1862, said: