Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/351

Rh CONTRABAND 321 Baltic powers (supported by the writings of Heineccius and Yaliu) inclining to the affirmative, while Bynkershoek (Qncest. Jar. Pub. i. 10, 1737) and Lampredi (Del Com- mercio dei Papoli Neutrali in Tempo di Guerra, 70) main tained, in conformity with the 20th article of the Treaty of Utrecht, that goods, though possibly of warlike use, were not contraband, if not worked into the form of an instrument of war. Other authors, as Vattel (Droit des Gens, iii. 7, 112) and Heineccius (De navibus ob vecturam vetitarum merciumcommissis, Comm. xiv.), attached great value to the fact of urgent need among the enemy &quot; si hostis laboret inopia&quot; and were prepared on this ground even to include provisions as contraband. Tha first armed neutrality of 1789, alarmed by the growing naval power of Great Britain, declared that only munitions of war and sulphur should be contraband. (This is the kriegs-contrebaiide of German jurists. See Lord Grenville s Letters of Sulpicius Ward.) 1 In 1793 both England and France made large seizures of provisions, the former pretending that there was a chance of reducing France by famine, and the French executive having assumed the direction of the whole corn trade of their country. Both sides were wrong, and were nobly robuked by the counter declaration of the Danish minister, Count Bsrnstorf, in which he explained that a neutral was neither a party nor a judge, and could take no notice of a reciprocity of injuries. The United States also energetically protested against the notion that provisions, not destined to a blockaded port, could in any circumstances be contra band, a position inconsistent with the modern American doctrine that an actual military destination even of luxuries will impress on the cargo a contraband character. The second armed neutrality of 1800 took up the same position as the first ; and in 1803 England and Russia agreed that money, horses, ships, and manufactured articles for naval use were to be confiscated, naval stores, the produce of either country, being brought in for pre-emption. The only existing treaties of England on this subject are those with Portugal in 1820 (munitions of war, sulphur, horses, money, and naval stores) and with Brazil in 1827 (munitions of war and naval stores). Throughout the French wars, however, the law administered by Lord Stowell and others in the English prize court was much harsher than the treaty obligations of the nation. The circumstances which Lord Stowell considered favourable to a cargo were these : 1. Its being the product of the neutral country, and therefore a natural export; 2. Its being in an unmanufactured state, as hemp or iron ; 3. Its destination to a commercial not a military port (&quot; Jonge Margaretha,&quot; 1 Rob. Adm. Rep.) Among modern jurists Ortolan (Diplomatic de la Mo:, ii. 190) and Heffter (Le Droit International, 160), as quoted by Hall, agree that contraband cannot be limited to nrmitions of war, but must extend to raw materials and merchandize, if clearly destined for actual and immediate military use. Ortolan expressly excludes provisions under all circumstances, but the tendency of modern decision is to bring all articles to the test proposed by Mr Dana, the editor of Wheaton, &quot; the right of the belligerent to prevent certain things from getting into the military use of the enemy,&quot; a principle which is obviously independent of the innocent or fraudulent intention of the owner of the cargo. Mr Hall proposes a classification of contraband goods, not being munitions of war, based on their more or less intimate connection with military operations. Among these he includes horses, saltpetre, sulphur, materials of naval con struction, such as timber, cordage, pitch (stated by the British Government during the Crimean war to be con traband), marine engines, &c., and coal, if its immediate 1 Essay on Contraband, London, 1801 ; Lord Liverpool s Discourse on the conduct of the Government of Great Britain in respect to JVeutral Nations, London, 1801. destination be military. Thus in the Franco-German war, 1870, vessels laden with coal were forbidden to sail from English ports to the French fleet iu the North Sea. France, on the other hand, still holds by the decision in the case of &quot; II Volante &quot; (an Austrian ship laden with bois de construc tion from Lisbon to Messina, and captured in 1807 by the French cruiser &quot; Etoile de Bonaparte &quot;). that ship s timber and naval stores are not contiaband. Provisions of very various kinds, biscuits, cheese, wine, corn have both in England and America been held contraband (The &quot; Com- mercen,&quot; 1 Wheaton s Reports). 1 A ship, available for war, and sent to an enemy s port with instructions either to sell or charter, has been condemned in England. The general subject of ships, however, belongs to the subject Neutrality. With regard to clothing, money, and unwrought metals, there are no recent decisions, but the rule would probably be applied that they may become contraband iu certain circumstances. The ordinary penalty of carrying con traband is confiscation of cargo, but where the capture is only justified by special circumstances, or, as it is sometimes expressed, where the contraband is &quot;conditional,&quot; and where the cargo is ordinary neutral produce, and there is perfect bona fides of the owner, the ship is merely carried in for pre-emption, which means the owner s value plus 10 per cent., with indemnity for freight and expenses of detention. Anciently, in cases of absolute contraband, both ship and cargo were forfeited ; it is said llussia still does this. The right of pre-emption (droit d achat) is stated by Lord Stowell to apply to all cargoes whatever bound for an enemy s port ; and it is settled that any attempt at fraud, as false papers, or a concealed destination, will disentitle the owners to compensation. The same circumstances occurring in the case of a cargo of absolute contraband, even where the ship does not belong to the owner of the contraband, may forfeit the ship. It will be remembered that the blockade runners of the American civil war raised very nice questions on this point. It was impossible to prove that these vessels after leaving Nassau were not going to Matamoras in Mexico, for they had only a floating intention of &quot; running.&quot; The question, there fore, which came before the Supreme Court of the United States in the &quot;Bermuda&quot; and &quot;Peterhoff&quot; cases was whether the interposition of a neutral port between the neutral point of departure and the belligerent destination did protect the cargo which was admitted to be contraband There could be little doubt that the goods went straight through Texas to the Confederate States. But in several cases these cargoes were not condemned. The &quot; Peterhoffs &quot; cargo was army boots, artillery harness, regulation blankets, chloro form, and quinine. Where the shipowner is innocent and does not own the cargo, he merely loses his freight and expenses. Contraband articles also involve innocent parts of a cargo in cci fisca- tion when both belong to one owner. The United States and Prussia are the only powers that have chosen the bold plan of entirely renouncing by treaty between themselves the right of confiscation, for which they have substituted an unlimited right of stoppage and detention and appropria tion, subject to full compensation. This is an arrangement which may probably become more common, and will of course much weaken the effects of the law of contraband. It is impossible to prevent the seizure of private property in war, but it has been suggested that the value should be 1 The &quot;Commercen&quot; was a Swedish vessel, carrying English provi sions to a Spanish port for delivery to the British commissariat in the Peninsular War. Sweden and Spain were British allies in the war with France, but neutral in the war with the United States, and there was no alliance between France and the States. The particular cargo was therefore (unjustly) condemned as enemy s goods, but doctrines were laid down as to contraband. VI. 41