seized while within the territorial limits, for they cannot be pursued upon the high seas, as no rights of blockade can extend beyond the sovereignty which was acquired by conquest and is continued by actual possession. We think Hautefeuille has confounded the rights of blockade with the rights of military occupation, which are not only distinct in their nature, but essentially different in their legal consequences. Nevertheless, his views are worthy of attention, and he has maintained them with marked ability. It is not so much our object in this work to discuss theories, or to determine what the law of blockades ought to be, as to ascertain what the law now is, according to the decisions of prize courts, and the opinions of the best writers on international jurisprudence. The rules of maritime war, as now practised, undoubtedly present some anomalies which cannot be easily reconciled with any abstract theory.' Hautefeuille, Des Nations Neutres, tit. ix.; Hautefeuille, Hist. du Droit Mar. Int., pt. iii. ch. i. § 1; Lampredi, Commerce des Neutres, pt. §5; Galiani, Dei Doveri, &c., cap. ix.; Massé, Droit Commercial, liv. ii. ch. ii. Definition of con traband CHAPTER XXVI CONTRABAND OF WAR 1. General law of contraband-2. All contraband articles to be confiscated-3. Ancient rule that cargo affects the ship-4. Modern rule5. Cases where ship also is condemned-6. Ördinary penalty not averted by ignorance or force-7. The 'Springbok'-8. Return voyage-9. If not contraband at time of seizure-10. Transfer of such goods from one port to another-11. Destination need not be immediate to enemy's port-12. The 'Commercen'-13. Differences of opinion among text-writers-14. Views of Grotius and others— 15. Of modern publicists-16. Ancient treaties and ordinances-17. Modern treaties and ordinances-18. Conflicting decisions of prize courts-19. There is no fixed universal rule—20. Implements and munitions of war-21. Manufactured articles-22. Unwrought articles-23. Intended use deduced from destination-24. Provisions-25. Pre-emption-26. British rule of pre-emption-27. Contested by other nations-28. Insurance on articles contraband of war. § 1. HAVING already discussed the general rights and duties of neutrals, and the liability of neutral property to capture and condemnation for violation of the law of sieges and blockades, we will now consider the rules of international law with respect to goods contraband of war. The term contraband (contrabandum, or contra bannum) has been used from time immemorial to express a prohibition of certain kinds of commerce. Such prohibitions are found in the laws of Justinian, in the decrees of the Popes and Councils in the time of the Crusades, and more especially in those issued by different powers during the wars of the Hanseatic League. The theory of the present law of contraband, however, had its origin in the school of Bologna, but its complete development was coincident with the development of the modern laws of commerce. By this term we now understand a class of articles of commerce which neutrals are prohibited from furnishing to either one of the belligerents, for the reason that, by so doing, injury is done to the other belligerent. To carry on this class of commerce is deemed a violation of neutral duty, inasmuch as it necessarily interferes with the operations of the war by furnishing assistance to the belligerent to whom such prohibited articles are supplied. But the trade of neutrals with belligerents, in articles not contraband, is absolutely free, unless interrupted by blockade.' band arti § 2. In the view of international law,' says Lord West- Contrabury, 'the commerce of nations is perfectly free and un- cles conrestricted. The subjects of each nation have a right to inter- fiscated change the products of labour with the inhabitants of every other country. If hostilities occur between two nations, and they become belligerents, neither belligerent has a right to impose, or to require a neutral government to impose, any restrictions on the commerce of its subjects.' But if the trade of the neutral in munitions of war-or contraband articlesinterferes with the rights of either belligerent, then that belligerent has an international right to seize such goods. There is no difference of opinion with respect to this general rule, whatever may be the extent of disagreement with respect to what articles may properly be regarded as contraband. The noxious articles themselves (if decided to be contraband) are invariably condemned, and no defence or plea can save them from confiscation, when their character as contraband, and their destination to a hostile port or country, are admitted or established. But the extent of the penalty, for the carriage of such articles, does not seem to be fixed by any positive or uniform rule; or, at least, the decisions seem to vary with the special circumstances of each case. Nevertheless, it may be possible to deduce from these apparently conflicting decisions of Courts of Admiralty, some general principle which may form the basis of the rule of international law with respect to the carriage of such prohibited articles.2 1 The 'Peterhoff,' 5 Wall., 28. 2 Ex parte Chavasse, in re Grazebrook, 34 L. J., Bank., 17; Seton v. Low, 1 Johns. N. Y. Cases, 1, (N.S.) 249; the 'Helen,' 35 L. J. Ad., 2; Kent, Com. on Am. Law, vol. i. pp. 135-143; Ortolan, Diplomatie de la Mer, liv. iii. ch. vi.; Garden, De la Diplomatie, liv. vii. § 4; Heffter, Droit International, § 161; Nau, Völkerséerecht, §§ 193 et seq.; Jacobson, Seerecht, &c., pp. 422, 423; Pando, Derecho Internacional, p. 496; Hautefeuille, Des Nations Neutres, title viii. § 1; Bello, Derecho Internacional, pt. ii. cap. viii. § 4; Poehls, Seerecht, &c., b. iv. p. 1104; Kaltenborn, Seerecht, b. ii. p. 420; Lampredi, Commerce des Neutres, pt. i. § 7. Ancient rule in regard to ships Modern rule §3. By the ancient laws of war, as established by the usages of European nations, the contraband cargo affected the ship, and involved it in the sentence of condemnation. The justice. of this rule is vindicated by Bynkershoek and Heineccius, and it cannot be said that the penalty was unjust in itself, or unsupported by the analogies of the law. Grotius does not particularly discuss the case of the ship carrying contraband, but alludes to the subject in very general terms. Soon after his time a relaxation began to be introduced into treaties, but this relaxation, at first, applied only to cases in which the owner of the vessel might be supposed to be a stranger to the transaction. Subsequently, the stipulation in treaties became more general, although the relaxation was directed, in its particular application, as well as in its origin, only to such cases as afford a presumption that the owner was innocent, or the master deceived.' § 4. By the modern practice of the prize courts of England and the United States, and not opposed, it is believed, by other nations, a milder rule has been adopted, and the carrying of articles contraband of war is now attended only with the loss of freight and expenses, except where the ships belong to the owner of the contraband cargo, or where the simple misconduct of carrying contraband articles is connected with other circumstances which extend the offence to the ship also. Sir William Scott says, 'Anciently, the carrying of contraband did, in ordinary cases, affect the ship, and although a relaxation has taken place, it is a relaxation the benefit of which can only be claimed by fair cases. The aggravation of fraud justifies additional penalties.' 2 § 5. Where the transportation of the contraband articles is prohibited by the stipulations of a treaty, to which the 1 Bynkershoek, Quæst. Jur. Pub., lib. i. cap. x.; Heineccius, De Nav., &c., cap. ii. § 6; Grotius, De Jure Bell. ac Pac., lib. iii. cap. i.; the 'Ringende Jacob,' 1 Rob., 90; the 'Mercurius,' 1 Rob., 288, note. The 'Franklin,' 3 Rob., 221, note; Polson, Law of Nations, p. 64; the 'Jonge Tobias,' 1 Rob., 329; the Neptunus,' 3 Rob., 108; the 'Jonge Margaretha,' 1 Rob., 189; the 'Sarah Christina,' 1 Rob., 242. In determining the question of costs and expenses, the fact of conveyance of contraband may be properly taken into consideration, with other circumstances, such as want of frankness in a neutral captain, engaged in a commerce open to great suspicion, and his destruction of some kind of papers in the moment of capture, and this, although it seemed almost certain that the ship was destined to a port really neutral, and with a cargo for the most part neutral in character and destination. (The 'Peterhoff,' 5 Wall., 28; the ‘Springbok,' ibid. 1.) where the ship also demned government of the neutral shipowner is a party, the forfeiture Cases of the freight is extended to the ship, on the ground that the criminality of the act is enhanced by the violation of the is conadditional duty imposed by the treaty. An attempt to conceal the destination of the ship, by false papers, will lead to the same result. I desire it to be considered as the settled rule of law received by this court,' says Sir William Scott, in the case of the Franklin,' that the carriage of contraband with a false destination will work a condemnation of the ship as well as the cargo.' There are other cases of misconduct which are held by the courts to involve the confiscation of the ship carrying contraband; as the privity of the owner of the ship to the contraband; the concealment of the contraband in the outward voyage; the misconduct of the supercargo, the agent of the owner; the contraband traffic of the officer placed in command of a private vessel by the Board of Admiralty, and where the owner of the contraband is also owner, or part owner, of the ship. But these cases will be more particularly discussed in the chapter on violation of neutral duties.' or force § 6. The ordinary penalty of carrying articles contraband Ples of of war, is the confiscation of the goods and the loss of the ignorance freight and expenses to the ship. This penalty is not to be averted by the allegation that the owners or master were ignorant of the true nature of the articles, or that, by the threat or violence of the enemy, they were compelled to receive and transport them. Such excuses, if allowed, would be constantly urged, and by robbing the prohibition of contraband of its penal character, would convert it into a mere nugatory threat. Where the cargo does not wholly consist of contraband goods, the innocent articles of innocent shippers are restored; but all the goods of the owner of the contraband articles, even those which are innocent, share the same fate.2 7. The inception of the voyge is held to complete the The offence; and from the moment that the vessel, with the con- 'Spring The 'Franklin,' 3 Rob., 221; Duer, On Insurance, vol. i. p. 625; the 'Baltic,' 1 Acton, 25; Blewitt v. Hill, 13 East, 13; the Floreat Commercium,' 3 Rob., 178; the Neutralitet,' 3 Rob., 295; the Enrom,' 2 Rob., 6; the Ranger,' 6 Rob., 125; the Edward,' 4 Rob., 68. Duer, On Insurance, vol. i. p. 625; the 'Oster Resoer,' 4 Rob., 199; the 'Caroline,' ibid. 260; the 'Richmond,' 5 Rob., 325; the 'Charlotte,' ibid. 275. bok' |