« PreviousContinue »
kinds of naval stores, horses, and even provisions, when there are hopes of reducing the enemy by famine. But De Witt, in a letter of Jan. 14, 1654, while including among contraband goods cordage, and other materials suitable for the equipment of ships of war, gives his opinion that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy’s country; and much difficulty has been experienced in consequence of differences of opinion in this respect.
The questions of contraband brought before the Prize Court of Admiralty in this country, during the war times extending from 1792 to 1814, are those from which the English lawyer may best learn the principles as well as the practice by which matters of this nature are determined, and the judgments of our great master of international law are the main sources whence the learning on this head is to be derived."
In the case of the Jonge Margeretha (1 Rob., 189), Sir William Scott observed that “the catalogue of contrabands has varied very much, and sometimes in such a manner as to make it difficult to assign the reason of the variations, owing to particular circumstances, the history of which has not accompanied the history of the decisions.” It is, however, one of the prerogatives of the British crown to make new declarations of contraband when articles come into use as implements of war which before were innocent. This is not the exercise of arbitrary discretion, which the law of nations prohibits; but it is in accordance with the usus bellici, which shift from time to time, making the law shift with them. One of the principal criteria adopted by our courts for determining the question, whether any particular articles be confiscable as contraband, is to ascertain whether they be in a rude or a manufactured state; for articles are treated with greater indulgence in their natural condition, than when they are wrought up for the convenience of the enemy's immediate
Thus Sir William Scott, in the case last alluded to, lays
1 The courts of the United States of America bave very generally referred to, and adopted, Lord Stowell's decisions on questions of prize and contraland.-Kent's Com.
down, that though anchors and other instruments fabricated out of iron are directly contraband, yet that metal when unwrought, is more favourably viewed; so too is hemp, as distinguished from cordage; and wheat, from bread or biscuit. The case of the Haabet (2 Rob. Rep., 182) seems to have settled that provisions in strictness are confiscable as contraband.
In that case Sir William Scott explained the strict law, and the relaxations of modern practice. He observes, that the right of taking possession of cargoes of this description, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of the maritime states of Europe, was to confiscate them entirely; but a more mitigated practice prevailed in later times, namely, that of holding such cargoes subject only to a right of preemption, a reasonable compensation being made to the individual whose property is thus diverted. In the war between England and France at the close of the last century, this rule, however, was not adopted; for the National Convention (9th May, 1793) decreed that neutral vessels laden with provisions bound for an enemy's port might be seized ; and England, by way of reprisal (8th June, 1793), ordered a similar capture of all neutral vessels bound for France laden with corn, meal, or flour.
From a further position laid down in the case of the Haabet, just quoted, the destination of cargo constitutes a material element for consideration. "The most important distinction," observed the learned judge, "is, whether the articles were intendeil for the ordinary use of life, or even for mercantile ships' use, or whether they were going, with a highly probable destination, to military use. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the predominant character of the port, like Brest in France, or Portsmouth in England, be that of a port of naval or military equipment, it shall be intended that the articles were going for military use.” Where the goods are clearly shewn to be contraband, confiscation to the belligerent captor-except in
such cases of relaxation as above mentioned-follows as a matter of course.
Barely to stop such goods," says Vattel, “would in general prove an ineffectual mode, especially at sea, where there is no possibility of cutting off all access to the enemy's harbours; recourse is therefore had to the expedient of confiscating all contraband goods that can be seized, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities." On this account a nation at war notifies to neutral states the declaration of war, whereupon the latter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring that, if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of maritime states seems at present fixed; and, in order to avoid perpetual recurrence of complaint, it has been agreed that the belligerent powers may seize and confiscate all contraband goods which the subjects of a neutral state shall attempt to carry to the enemy, without liability of complaint being made by the government of such neutral state; while, on the other hand, the power at war may not render a neutral state responsible for these practices of its subjects.
Contraband articles are said to be of an infectious nature, so as to contaminate the whole cargo belonging to the same owner, by which metaphorical language is meant that all the merchandise which he may have embarked in the same ship is liable to seizure and confiscation. This consequence does not, however,
. except in aggravated cases, extend to the ship, unless she also belong to the owner of the goods. In ordinary cases, the only
, loss sustained by the shipowner from having contraband articles on board, is the loss of freight and expenses. If, however, the ship and goods be owned by the same person, or if the contraband articles are sought to be protected by a false destination or false papers, the contagion of the contraband will extend to the whole of the ship and cargo, and both will be subject to confiscation. (The Staadt Embden, 1 Rob., 26; the Ringende Jacob,
* All insurances on contraband of war are void, and incapable of being
ib., 89; the Franklin, 3 Rob., 217.) This general rule, however, is occasionally modified by treaties, as in those of the United States of America with the new republics of South America.—(Kent's Com., vol. 3, p. 267).
Contraband trade, in the proper sense of the word, can only be carried on by neutrals in time of war. Hence, where a clause contained in the commercial treaty, between this country and Portugal, of 1810, excepted from the reciprocal liberty of commerce announced by the treaty all articles contraband of war, this was held to apply only to importation in time of war; and a policy effected in this country on arms and ammunition exported from Great Britain to Madeira, in the dominions of Portugal, in times of peace, was held valid, notwithstanding the clause, (Wilbraham v. Wartnaby, 1 L. & Wels., 144.)
The rights of a belligerent nation against the delinquencies of neutrals, would exist to no purpose if she were not clothed with the practical power of enforcing them : such a power, by the law of nations, exists. We cannot prevent the consequence of contraband goods, says Vattel (338), without searching neutral vessels that we meet at sea. We have, therefore, a right to search them; a neutral ship refusing to be searched, would, from
; that proceeding alone, be condemned as lawful prize.
The whole international law upon this subject is admirably summed up by Sir William Scott, in his judgment on the case of the Maria (1 Rob. 340), where he establishes three important points :-1st, That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is the incontestable right of the lawfully commissioned cruisers of a belligerent nation. 2ndly, That the authority of the sovereign of the neutral country being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commissioned belligerent cruiser. 3rdly, That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. enforced in the courts of the belligerent country; aliter in the courts of a neutral state, provided the underwriter has had notice of the nature of the articles.-(Marsh or Insurance, 75.)
Azuni, in the treatise already referred to, has collected and commented on the various and conflicting provisions of the different treaties and conventions which illustrated the positive law of Europe on the rights and liabilities of neutrals upon the sea, from the earliest times of European history down to the commencement of the great French revolutionary war. Since that time various treaties and conventions, as occasion has arisen, have been entered into, by which those rights and liabilities have been affected. Thus, during the late Russian war, the United States of America entered into a convention' with Russia, to the effect, "that free ships make free goods;" in other words, that the goods belonging to subjects of a power at war, are free from capture when found on board of neutral vessels, with the exception of articles contraband of war; and further, “that the property of neutrals on board an enemy's vessel is not subject to confiscation unless the same be contraband of war." The contracting parties likewise engaged to apply these principles to the commerce and navigation of all such powers as should consent to adopt them. Shortly afterwards, a convention, in precisely the same terms, was entered into between Naples and the United States.
Again, at the conclusion of the late Russian war, a declaration was signed by the plenipotentiaries of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, which is of so weighty a character with reference to modern civilisation, and has so materially affected maritime law in times of war, that we shall
, here insert it at length :
DECLARATION. The plenipotentiaries who signed the treaty of Paris of the 30th of March, 1856, assembled in conference, considering :
That maritime law, in time of war, has long been the subject of deplorable disputes;
That the uncertainty of the law and of the duties in such a matter, gives rise to differences of opinion between neutrals and belligerents, which may occasion serious difficulties, and even conflicts;
1 Signed at Washington 22nd July, 1854 ; ratified 31st October, 1854. *Signed at Naples 13th January, 1855; ratified 14th July, 1855.