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equipment or to a naval armament, were condemned and, as has already been seen, the same practice was followed by the Courts of the United States.1 In 1793 and 1795, the English Government indefensibly extended the application of the doctrine to the point of seizing all vessels laden with provisions which were bound to a French port, alleging as their justification that there was a prospect of reducing the enemy by famine. A serious disagreement occurred in consequence with the United States, which maintained that provisions could only be treated as contraband when destined for a place actually invested or blockaded; and the point remained wholly unsettled by the Treaty of 1794, which, while recognising that provisions, under the existing law of nations, were capable of acquiring the taint of contraband, did not define the circumstances under which the case would arise.2 The excesses of the English Government cast discredit on the doctrines under the shelter of which they screened themselves. Manning adopts it, but not without evident hesitation. Wheaton seems to think that provisions can only be contraband when sent to ports actually besieged or blockaded; and MM. Ortolan, Bluntschli, and Calvo declare this to be undoubtedly the case. No nation except England has pushed its practice even to the point admitted in the American Courts; nor can it be doubted for a moment, not only that the detention of provisions bound to a port of naval equipment is unauthorised by usage, but that it is unjustifiable in theory. To divert food from a large

3

1 The Ranger, vi Rob. 125; The Edward, iv Rob. 69. For the American practice, see ante p. 109.

2 De Martens, Rec. v. 674. 3 Manning, 290-301; Wheaton, pt. iv. chap. iii. § 24; Or

tolan, ii. 191 and 216; Bluntschli, § 807; Calvo, § 1106; Phillimore (iii. § 246-58) seems to look upon the practice of the English and American Courts as being the most authoritative part of a confused usage.

population, when no immediate military end is to be served, because it may possibly be intended to form a portion of supplies which in almost every case an army or a squadron could complete from elsewhere with little inconvenience, would be to put a stop to all neutral trade in innocent articles. But writers have been satisfied with a broad statement of principle, and they have overlooked an exceptional and no doubt rare case, in which, as it seems to me, provisions may fairly be detained or confiscated. If supplies are consigned directly to an enemy's fleet, or if they are sent to a port where the fleet is lying, they being in the latter case such as would be required by ships, and not ordinary articles of import into the port of consignment, their capture produces an analogous effect to that of commissariat trains in the rear of an army. Detention of provisions is almost always unjustifiable, simply because no certainty can be arrived at as to the use which will be made of them; so soon as certainty is in fact established, they, and everything else which directly and to an important degree contributes to make an armed force mobile, become rightly liable to seizure. They are not less noxious than arms; but except in a particular juncture of circumstances their noxiousness cannot be proved.

money,

§ 46. Money and unwrought metals, and in Clothing, general, clothing and its materials, are of like character metals, &c. with provisions, and may become contraband under similar conditions. But uniforms, soldiers' greatcoats, &c., present some difficulty; their destination and their use for warlike purposes is obvious, but on the other hand they are not, under ordinary circumstances, of such necessity that the presence or absence of a particular consignment can be expected to affect in any way the issue of hostilities.1

1 Manning (p. 287) thinks that metals and money are not contraband.

Penalties

contra

band.

§ 47. In strictness every article which is either affecting necessarily contraband, or which has become so from the special circumstances of the war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preemption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent. on the amount. This mitigation of extreme belligerent privilege is also introduced in the case of products native to the exporting country, even when they are affected by an inseparable taint of contraband.1

1 Phillimore, iii. § 268-70.
Rules for ascertaining the value
of the merchandise seized, and
for other matters of detail con-
nected with the practice, were
laid down in the treaty between
Great Britain and the United
States in 1794, and in that be-
tween the former country and
Sweden in 1803. MM. Heffter

(§ 161) and Calvo (§ 1127) look
upon preemption not as a mitiga-
tion but as an intensification of
the privileges of a belligerent;
but they start with assuming
that it is only used with respect
to articles not contraband of war.
That much of the merchandise
to which preemption was ap-
plied during the wars of the end
of last century was not rightly
considered to be contraband, does
not alter the fact that, being
considered to be contraband, it
was lightly dealt with. M.
Heffter, however, seems to ad-
mit that preemption may be
permitted on payment not merely
of ordinary mercantile profit, but
of such profitas would probably be
realised if the voyage were com-
pleted. M. Ortolan (ii. 220-30)

understands the theory of the
English practice, but is debarred
by his views as to the proper
definition of contraband from
recognising any occasions on
which it could be exercised.
M. Bluntschli (§ 806 and 811)
thinks that 'contrebande de
guerre ne peut être confisquée
que lorsque les neutres prêtent
secours et assistance à l'adver-
saire, c'est à dire lorsqu'ils agissent
en ennemis; la saisie ne pourra
avoir lieu lorsque les neutres
font simplement du négoce.'
To use his own example, if coal
is found to be on its way to a
port where a belligerent fleet is
at anchor, it may be detained on
compensation being made to the
owner, but it cannot be confis-
cated unless the intention of
delivering it to the enemy's fleet
can be proved. He is silent as
to any different rule being ap-
plied to munitions of war.
does not state where the authority
for this doctrine is to be found;
but as its adoption would be
tantamount to sweeping away
the whole law of contraband, it
can hardly be admitted on the

He

contra

the vessel

The injuriousness to a belligerent of contraband Effect of trade by a neutral, results from the nature of the band on goods conveyed, and not from the fact of transport. carrying it. This distinction prevents the penalty which affects contraband merchandise from being extended as a general rule to the vessel in which it is. Some writers consider that the neutral vessel has even a right to purchase the free continuance of her voyage at the price of abandoning to the belligerent whatever contraband goods she has on board, unless their quantity is so great that the captor cannot receive them. The existence of any such general right would be difficult to prove; but a large number of treaties have established the practice between certain nations; 2 and it

word of a single writer, however distinguished he may be. An ostensible destination to a belligerent government agent or to an armed force would hardly ever be necessary; and it is needless to say that merchandise would in consequence never be open to condemnation. And as a market with a good profit would be certain, whether the adventure were captured or arrived at its destination, no check would exist by which the trader could be restrained. Finally, as the merchant would be without risk, the belligerent would be relieved from the necessity of paying war prices for his goods.

1 The ancient practice, except in France, where, until 1681, goods were only seized on payment of their value, was to confiscate both cargo and ship. The Neutralitet, iii Rob. 295. And And to this Russia seems to adhere; Russian Declaration. 1854, quoted by Lawrence in note to Wheaton, 573. In some treaties the freedom of the ship is ex

pressly stipulated, e.g. in that
between Denmark and Genoa,
1789. De Martens, Rec. iv. 443.

2 It is provided for in the
treaties between Russia and
Denmark, 1782 (De Martens,
Rec. iii. 476); the United States
and Sweden, 1783 (ib. 571);
Austria and Russia, 1785 (ib. iv.
78); England and France, 1786
(ib. 172); France and Russia,
1787 (ib. 212); Russia and Two
Sicilies, 1787 (ib. 238); Russia
and Portugal, 1787 (ib. 329);
United States and France, 1800
(ib. vii. 104); Russia and
Sweden, 1801 (ib. 332); United
States and Central America,
1825 (Nouv. Rec. vi. 834);
United States and Brazil, 1828
(ib. ix. 61); United States and
Mexico, 1831 (ib. x. 339);
United States and Venezuela
(Nouv. Rec. Nouv. Sér. iv. 558);
United States and Peru, 1836
(ib. vi. 119); United States and
Ecuador, 1839 (Murhard, Nouv.
Rec. Gen. iv. 315); France and
Ecuador, 1843 (ib. v. 172);
France and New Grenada, 1844

was followed by the Confederate States during the American Civil War. It can scarcely be believed, however, that its vitality could stand the rude test of a serious maritime war. Dana observes with great truth that 'as the captor must still take the cargo into port, and submit it to adjudication, and as the neutral carrier cannot bind the owner of the supposed contraband not to claim it in court, the captor is entitled for his own protection to the usual evidence of the ship's papers and whatever other evidence induced him to make the capture, as well as to the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all the papers and deliver them to the captor; and certainly the testimony of the persons on board cannot be taken at sea in the manner required by law.' In face of these difficulties he is inclined to think that even the treaties can only apply to cases in which there is a capacity in the neutral vessel to insure the captor against a claim to the goods."1

The more common practice is to take the vessel with its cargo into a port of the captor, where the articles of contraband are duly condemned; but the vessel itself is ordinarily visited with no further penalty than loss of time, freight, and expenses.2 If, however, the ship and the cargo belong to the same owners, or if the owner of the former is privy to the carriage of the contraband goods, the vessel is in

(ib. vii. 620); France and Guatemala, 1848 (ib. xii. 11); United States and New Grenada, 1848 (ib. xiii. 653); United States and San Salvador, 1850 (Samwer, Rec. Gen. i. 74). Russia seems no longer to hold the views of which she was an apostle in the end of the last century; see p. 123, note 1.

1 Dana's Wheaton, note to

$507. Bluntschli, § 810; Calvo,

1122; and Hautefeuille, tit. xiii. chap. i. sect. i. § i. elevate the practice into a neutral right. Ortolan (ii. 203), is more cautious.

2 Wheaton, pt. iv. chap. iii. § 26; Phillimore, iii. § 275; The Sarah Christina, i Rob. 242; Heffter, § 161.

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