a profitable commerce; they will send their cargoes where interest invites; and if this inducement is held out to them in time, it will always produce the effect intended. But so long as Great Britain offered less for the necessaries of life than could have been obtained from her enemy, was it not to be expected that neutral vessels should seek the ports of that enemy, and pass by her own? Could it be said that, under the mere apprehension (not under the actual experience) of scarcity, she was authorized to have recourse to the forcible means of seizing provisions belonging to neutrals, without attempting those means of supply which were consistent with the rights of others, and which were not incompatable with the exigency? After this order had been issued and carried into execution, the British government did what it should have done before; it offered a bounty upon the importation of the articles of which it was in want. The consequence was, that neutrals came with these articles, until at length the market was found to be overstocked. The same arrangement, had it been made at an earlier period, would have rendered wholly useless the order of 1795. Upon these grounds, a full indemnification was allowed by the commissioners, under the seventh article of the Treaty of 1794, to the owners of the vessels and cargoes seized under the Orders in Council, as well for the loss of a market as for the other consequences of their detention (e). The question as to what is, and what is not, contraband, cannot as yet be answered with precision. No complete list of goods which are to be always deemed contraband has been drawn up, nor does it seem likely that it ever will be. That which is contraband under certain circumstances may not be so under others. The main point, when an article is of doubtful use, is whether it was intended, or would probably be applied, to military purposes. In England and America, the Court before which the goods are brought, will inquire into all the circumstances of the case, such as the destination of the ship, the purposes to which the goods seem intended to be applied, the character of the war, and so on, and will condemn or release them upon the evidence (ƒ). If, however, there are any treaty stipulations on the subject, or if the State before whose Courts the goods are brought, has issued any definite list (e) Proceedings of the Board of Commissioners under the seventh article of the Treaty of 1794. MS. Opinion of Mr. W. Pinkney, case of The Neptune. (ƒ) [Wheaton, by Dana, note 226. Calvo, vol. ii. § 1114. Kent, by Abdy, P. 359. Parl. Debates, 26th May, 1861.] § 501. Decision respecting the order. § 501a. What goods are contra band. Goods always deemed contraband of contraband goods (g), the decision will of course be regulated accordingly. "The liability to capture," says Halleck, "can only be determined by the rules of international law, as interpreted and applied by the tribunals of the belligerent State, to the operations of whose cruisers the neutral merchant is exposed " (h). The following goods have been held to be always contraband by the English Prize Court: arms of all kinds, and machinery for manufacturing arms, ammunition, and materials for ammunition, including in England. lead, sulphate of potash, muriate of potash, chlorate of potash, and nitrate of soda; gunpowder and its materials, saltpetre and brimstone; also guncotton; military equipments and clothing, and military stores (i). Naval stores, such as masts (k), spars, rudders, and ship timber (1), hemp (m), cordage, sailcloth (n), pitch and tar (o), and copper fit for sheathing vessels (p). Marine engines, and the component parts thereof, including screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, and fire-bars; marine cement, and the materials used in the manufacture of it, as blue lias and portland cement; iron in any of the following forms: anchors, rivetiron, angle-iron, round bars of from three-quarters to five-eighths of an inch in diameter, rivets, strips of iron, sheet plate-iron exceeding onequarter of an inch, and low-moor and bowling plates (q). Goods conditionally contraband in England. The following articles have been held to be contraband when the circumstances showed that they were probably intended to be applied to warlike Provisions and liquors fit for the consumption of purposes. army or navy (r), money, telegraphic materials-such as wire, porous cups, platina, sulphuric acid, and zinc (s); materials for the construction of a railway-as iron bars, sleepers (t); hay, horses, rosin (u), tallow (x), and timber (y). The Proclamation of the President of the United States (13th June, 1865), removing the restrictions on trade with the Southern States, only declared the following articles to be contraband :-arms, ammunition, all articles from which ammunition is made, and gray uniforms and cloth (2). The Declaration of Paris, while permitting the seizure of (g) [As France did in 1870. (h) [Halleck, ch. xxiv. § 19.] See post.] (2) [Lushington, Naval Prize Law, p. 35.] (k) [The Charlotte, 5 C. Rob. 305; The Staadt Embden, 1 C. Rob. 27.] (1) [The Twende Brodre, 4 C. Rob. 33.] (m) [The Apollo, 4 ibid. 161; The Evert, 4 ibid. 354; The Gesellschaft Michael, 4 ibid. 94.] (n) [The Neptunus, 3 C. Rob. 108.] (0) [The Jonge Tobias, 1 C. Rob. 329; The Twee Juffrouen, 4 ibid. 242.] (p) [The Charlotte, 5 C. Rob. 275.] (q) [Lushington, Naval Prize Law, p. 35. Field, International Code (2nd ed.), p. 550.] (r) [The Haabet, 2 C. Rob. 182; The Jonge Margaretha, 1 ibid. 191; The Ranger, 6 ibid. 125.] (s) [Parl. Papers, N. America, 1863 (No. 14), p. 5.] (t) Field, International Code (2nd ed.), p. 550.] (u) [The Nostra Signora de Begona, 5 C. Rob. 98.] (x) [The Neptunus, 3 C. Rob. 108.] (y) [The Twende Brodre, 4 C. Rob. 37.] (z) [Hertslet's Treaties, vol. xii. p. 946.] contraband, in no way defines it. The instructions to French naval perty of any person whomsoever, and public property of a neutral § 501b. Classification of con The subject of contraband was discussed before the Supreme Court of America, in a case arising out of the shipment of contraband goods from England to Matamoras during the civil war. Matamoras is situated traband on the Mexican side of the Rio Grande, and was consequently a neutral goods. port. The court said: "The classification of goods as contraband or not The contraband has much perplexed text writers and jurists. A strictly Peterhoff. accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. (1) Articles manufactured and primarily or ordinarily used for military purposes in time of war. (2) Articles which may be and are used for purposes of war or peace according to circumstances. (3) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege " (c). § 501c. Ulterior destination A point arose in this case, upon which the courts of England and America have arrived at different conclusions. Matamoras, as has been said, was a Mexican and neutral port. At the time the ship was cap- of the tured the United States had declared all the confederate ports blockaded, goods. and a squadron cruised off the mouth of the Rio Grande to intercept the trade with Galveston, a place on the opposite side of the river to Matamoras, and in Confederate territory. The question then arose whether the whole river was blockaded, or whether the blockade only applied to the Confederate side of it. The Supreme Court held that a blockade is not to be extended by construction, and that as the United States authorities had not expressly declared the whole river blockaded (whether they had power to do so or not was another question), the Mexican side must be considered open to the commerce of neutrals. But with regard to the contraband on board the ship, the judgment proceeded as follows:-"Contraband merchandise is subject to a different rule in respect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture (a) [See Barboux, Jurisp. du Conseil des Prises, 1870-71, Appendix, Art. 8.] (b) [Field, International Code, § 859.] (c) [The Peterhoff, 5 Wallace, 58.] § 501 d. Hobbs v. Henning. trade no breach of neutrality. only when a violation of blockade is intended; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents in articles not contraband is absolutely free, unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit at sea. Hence, while articles, not contraband, might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character destined in fact to a State in rebellion, or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras" (d). On the other hand the Court of Common Pleas, in a case arising in England out of the same voyage of the ship, came to the conclusion that goods contraband belonging to a neutral, are not liable to seizure unless in the actual prosecution of a voyage to an enemy's port. Nor is the rule affected by the fact that the shipper knows they are intended ultimately to reach an enemy's port (e). It cannot be foreseen which of these decisions may be followed in the future (ƒ), but it is evident that the American view materially increases the rights of belligerents, and adds another to the restrictions on neutral commerce during war. The case of The Commercen (g), cited in The Peterhoff, does not decide that contraband may be captured between two neutral ports with an ulterior destination for the enemy. Two wars then existed, one between England and the United States, another between England and France, carried on in Spain. The Commercen left Cork with a cargo of wheat, destined for the British fleet, then lying in a Spanish port, and she was captured by an American cruiser. The cargo was rightly held to be contraband under the circumstances. But it was condemned as enemy's property on its way to his fleet. Its destination to a neutral port was therefore not material. (h) § 501e. Some writers, overlooking the fact that a neutral has rights as well Contraband as a belligerent, have laid down the doctrine that the exportation of contraband is a breach of neutrality. This opinion has generally been adopted only by those whose views of international law are derived purely from speculation. The practice of nations in no way bears out such an assertion. In every war neutrals have traded in contraband, but with the risk of having the goods condemned if captured by the enemy (i). Few rules of international law are so certain as that a neutral government cannot be made responsible as for a breach of neutrality, because its subjects carry on a contraband trade. The trade must, however, be confined to subjects. If carried on by the govern (d) [The Peterhoff, 5 Wallace, 59.] (e) [Hobbs v. Henning, 17 C. B. N. S. 791.] (f) [Mr. Field, in his International Code, § 858, note, prefers the English view.] (g) [1 Wheaton, 382. See post, § 507.] (h) [The case of The Vrow-Howina, decided in France, bears upon this point. Calvo, ii. § 1120.] (i) [See Letters of Historicus, Contraband. Parl. Papers, N. America, 1873 (No. 2), p. 19; Turkey, 1878 (No. 1), p. 46.] ment itself, it then will amount to a violation of neutral duties (k). America has always maintained the right of exporting arms to belligerents in the way of trade (1); and during the civil war the Federal Government purchased warlike stores from England to the value of over £2,000,000 (m). A ship, theoretically considered, may or may not be contraband. If on its way to a belligerent port for the purpose of being sold to the belligerent, it will be contraband if it is adapted, or readily adaptable, for warlike use; equally so, doubtless, if it be adapted for the transportation of troops, or even perhaps of military material. As most ships may in some way be applied to such purposes, they are pretty sure to be condemned as contraband. Thus, where the captain had orders to sell if he could find a good purchaser, but otherwise to seek freight, the ship was condemned (n). § 5011. Ships as band. contra The immense importance of coals and machinery in the naval opera- § 501g. tions of the present day has given rise to endless discussions as to Coals and whether they are contraband or not. Writers of the school of M. Haute- machinery. feuille refuse to consider such commodities as contraband (0), and the French Government acted on this opinion during the war with Germany (p). Lord Chief Justice Cockburn says, "Coal, too, though in its nature ancipitis usus, yet when intended to contribute to the motive power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband " (9). § 502. Of the same nature with the carrying of contraband goods is the transportation of military persons or despatches in the Transpor service of the enemy. tation of military persons in the A neutral vessel, which is used as a transport for the and deenemy's forces, is subject to confiscation, if captured by the spatches opposite belligerent. Nor will the fact of her having been enemy's impressed by violence into the enemy's service, exempt her. service. The master cannot be permitted to aver that he was an involuntary agent. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition (k) [Ortolan, Diplomatie de la Mer. vol. ii. cap. 6. Bluntschli, Le Droit International Codifié, § 765, p. 385.] (7) [Kent, by Abdy, p. 361. Webster's Works, vol. vi. p. 452. President's Message to Congress. 1st Sess. 34th Cong.] (m) [British Counter-case at Geneva. Parl. Papers, N. America (No. 4), 1872, p. 55.] (n) [See American Law Review, vol. v. p. 371. The Brutus, 5 C. Rob. 331, n.] (o) [Hautefeuille, Droits et Devoirs des Nations Neutres, vol. ii. p. 143.] (p) [Archives Diplomatiques, 1871-72, Pt. I. p. 269.] (9) [Parl. Papers, N. America, 1873 (No. 2), p. 15. Jurist, 1859, vol. v. Pt. II. p. 203.] |