(after stating the facts). The general rule, that the neutral carrier of enemy’s property is entitled to his freight, is now too firmly established, to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or have interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence the carrying of contraband goods to the enemy, the engaging in the coasting or colonial trade of the enemy, the spoliation of papers, and the fraudulent suppression of an enemy’s interest, have been held to affect the neutral with the forfeiture of freight And in caseB of a more flagrant character, such as carrying despatches, or military passengers, for the enemy, or an engagement in the transport service of the enemy, or a breach of blockade, the penalty of confiscation of the vessel has been also inflicted. Bynk. Q. P. Jur. c. 14; The Sarah Christina, 1 C. Rob. Adm. 237; The Haase, Id. 286; The Emanuel, Id. 296; The Immanuel, 2 C. Rob. Adm. 186; The Atlas, 3 C. Rob. Adm. 299; The Rising Sun, 2 C. Rob. Adm. 104; The Madonna del Burso, 4 C. Rob. Adm. 169; The Neutralitet, 3 C. Rob. Adm. 295; The Weelvaart Van Pillaw, 2 C. Rob. Adm. 128; The Friendship, 6 C. Rob. Adm. 420.
By the modern law of nations, provisions are not, in general, deemed contraband; but they may become so, when the property of a neutral, on account of the particular situation of the war, or on account of their destination. The Jonge Margaretha, 1 C. Rob. Adm. 189. If destined for the ordinary use of life in the enemy’s country, they are not, in general, contraband; but it is otherwise, if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. Id. Another exception from being treated as contraband, is when the provisions are the growth of the neutral exporting country. But if they be the growth of the enemy’s country, and more especially if the property of his subjects, and destined for the enemy’s use, there doe® not seem any good reason for the exemption; for, as Sir William Scott observes, in such case, the party has not only gone out of his way for the supply of the enemy, but he has assisted him by taking off'his surplus commodities. The Jonge Margaretha [supra]. But it is argued, that the doctrine of contraband cannot apply to the present case, because the destination was to a neutral country. And it is certainly true, that goods destined for the use of a neutral country can never be deemed contraband, whatever may be their character, or however well adapted to warlike purposes. But if such goods are destined for the direct and avowed use of the enemy’s army or navy, I should be glad to see an authority, which countenances their exemption from forfeiture, when the property of a neutral.’ Suppose a British fleet were *212now lying in a neutral port, would'it be lawful for a neutral to carry provisions or munitions of war there, avowedly for the exclusive supply of such fleet? Would it not be a direct interposition in the war, and an essential aid to the enemy in his hostile preparations? In such a case, I should imagine the goods, if the property of a neutral, had the taint of contraband, in its most offensive character, on account of their destination, and that the mere interposition of a neutral port would not protect them from forfeiture. 1 agree, however, that strictly speaking this is not a question of contraband, for that can arise only when the property belongs to a neutral, and here the property belonged to an enemy, and therefore was liable, at all events, to condemnation. But was the voyage lawful, and such as the neutral could, with good faith, and without a forfeiture of his character, engage in? It has been solemnly adjudged, that being engaged in the transport service of the enemy, or in the conveyance of military personages in his employ, are acts of hostility, which subject the property to confiscation. The Friendship, C C. Rob. Adm. 420; The Orozembo, Id. 430; The Carolina, 4 C. Rob. Adm. 356. And the carrying of despatches, from the colony to the mother country of the enemy, has subjected the party to the like penalty. The Atalanta, C C. Rob. Adm. 440; The Constants, Id. 461, note. And in these cases, the fact, that the voyage was to a neutral port, was not thought to change the character of the transaction. The principle of these determinations was asserted to be, that the party must be deemed to place himself in the ■service of the hostile state, and assist in warding off the pressure of the war, or in favoring its offensive projects.
[NOTE. The opinion for affirmation, delivered by Mr. Justice Story in the supreme court, was substantially the same as the foregoing.]Now I cannot distinguish these cases, in principle, from that before the court. Here •is a cargo of provisions exported from the enemy’s country with the avowed purpose of •supplying the army of the enemy. The Antonio Johanna, 1 Wheat. [14 U. S.] 159; The Friendschaft, 4 Wheat. [17 U. S.] 105; 1 Kent, Comm. 140. Without this destination, they would not have been permitted to be exported at all. Can a more important or essential service be performed in his favor? In what does it differ from the case of a transport in his service? The property nominally belongs to individuals, and is freighted apparently on private account, but in reality for public use, and under a public contract, implied from the very permission of exportation. It is in vain to contend, that the direct effect of this voyage was not to aid British hostilities against the United States. It might enable the enemy indirectly to operate with more vigor and promptitude against us, and increase his disposable force. But it is not the effect of the particular transaction, that the law regards. It is the general tendency of such transactions to assist the military operations of the enemy, and the temptation which it presents to deviate from a strict neutrality. Nor do I perceive how the destination to a neutral port can vary the application of the rule. It is only doing that indirectly, which is prohibited in a direct course. Would it be contended, that a neutral might lawfully transport provisions for the British fleet and army, while they lay at Bourdeaux, preparing for an expedition to the United States? Would it be contended, that he might lawfully supply a British fleet stationed on our coasts? I presume, that two. opinions could not be entertained on such questions; and yet, though the cases put are strong, I do not know, that the assistance is more material, than may be supplied under cover of neutral destinations like the present. On the whole, I am of opinion, that the voyage, in which this vessel was engaged, was illicit, and inconsistent with the duties of neutrality; and I think it is a very lenient administration of justice, to deny the neutral master his freight.
The decree of the district court is reversed, so far as it allows the freight; and as to the residue is affirmed.
Affirmed in the supreme court ([The Com-mercenl 1 Wheat. [14 U. S.] 3S2); Washington, Story, Todd, and Duvall, JJ., concurring: Marshall, C. J., Livingston, and Johnson, JJ., dissenting.