other fulminating substances; artillery, engineering, and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons, &c.; articles of military equipment and attire, such as pouches, cartridge boxes, bags, cuirasses, sappers' tools, drums, saddles and harness, articles of military dress, tents, &c., and generally everything destined for military or naval forces. These articles, when found on board neutral ships and destined for an enemy's port, to be liable to seizure and confiscation, except the quantity necessary for the use of the ship on which the seizure was made. It is clear that the law of nations as regards contraband goods cannot be settled by a declaration on the part of any one nation, for such a declaration for war purposes might well omit from the list of contraband some articles which, in the case of another nation, might be regarded as essentially noxious. And if a list should be published enumerating, under the head of contraband of war, articles not previously commonly so regarded, the fact might create controversy and perhaps difficulties between the declarant and neutral powers. On the general principle, however, that a belligerent shall be allowed to prohibit the shipment to the enemy of all goods calculated to increase or prolong the resistance of the latter, reasonable or even indulgent latitude should presumably be permitted to such belligerent in his enumeration of the goods which he regards as coming, in his case, within this description. And if such isolated declarations are not to be looked upon as expositions of the public law respecting contraband, it is obvious that no mere international treaties can have any greater effect. This law, however, being as to its practice by no means clearly laid down, it is at least interesting to consider its application by such light as may be thrown upon it by international treaties, and especially by the public declarations of belligerents. As we have seen, some articles are so obviously contraband that even to specify them in a proclamation might seem superfluous. Others, again, are so clearly of a non-warlike character that a neutral may ship them to a belligerent without fear of the risk of confiscation. It is the third class-the goods ancipitis usûs— which creates the difficulty. Whether goods of this class can properly be confiscated or not will depend upon various circumstances-circumstances connected with the destination, the probable use, and especially with the place of production. The subject of such goods is important and demands special consideration. Goods of Equivocal Nature. (In past times.)-The articles specially coming under this head, according to the views held in earlier days, would seem to be in the main the following, viz.: Naval stores generally, including specially tar, pitch, resin, hemp, cordage, sailcloth, tallow, masts, spars, planks, anchors, copper sheets, and the like. Naval stores being prohibited, ships suitable for warlike uses would naturally be similarly regarded. Horses, saddles, and money have also been regarded as contraband. Corn and provisions stand on a somewhat different footing, as will appear presently. Such articles were or were not regarded as contraband according to their destination (7). If destined for a purely trading port of the enemy they were more probably held to be pacific goods. If, on the other hand, they were seized on their way to a governmental naval port or arsenal, they were deemed contraband, and were confiscated accord (1) Sailcloth, according to The Neptunus, 3 Rob. 108, has been universally contraband. : ingly (m). It was not all timber which was liable to confiscation it had to be made clear that the timber was of such lengths and dimensions as to "directly serve" for shipbuilding (n). But articles of mixed shipbuilding use, partly innocent and partly noxious, were liable to condemnation as a whole (o). Masts were, in the case of The Charlotte (p) and The Staadt Embden (q), expressly declared to be contraband per se. In the case of The Twende Brodre (r), with, a mixed timber cargo from Christiansand to St. Malo or Brest, the cargo was restored on the ground that it was not of a kind used in naval construction. But ship-timber was apparently not in all cases necessarily contraband, even if bound to a hostile military port. So at least it was decided, in 1807, by the Council of Prizes at Paris, where the Council decided against the captors on the ground that the timber was of an ordinary character, and not exclusively applicable to the building of ships of war (s). Tallow, again, whilst contraband to a port of naval equipment, was not so regarded if shipped to a purely mercantile port (†). The subject of the contraband nature of naval stores was a fertile source of dispute between Great Britain and the Baltic Powers throughout the eighteenth century, and various special stipulations were made from time to time respecting these articles. The practice of this country was, in Sir W. Scott's time, to relax the prohibition against the shipment of pitch and tar to the enemy's country when such goods were the (m) The Jonge Margaretha, 1 Rob. 194; The Peterhoff, Blatch. Pr. Ca. 463. (n) The Eendraght, 1 Rob. 23. (0) The Eleonora Wilhelmina, 6 Rob. 331. (p) 5 Rob. 305. (2) 1 Rob. 29. (r) 4 Rob. 33. (s) Maritime Warfare, p. 257. (t) The Neptunus, 3 Rob. 108. produce of the country from which they were exported (u). The reason for this leniency was that these articles formed so considerable a part of the native produce and ordinary commerce of the countries principally exporting them, that it would have been a very harsh exercise of belligerent right to subject them to confiscation. But this concession against the right of confiscation was not absolute. The goods, whilst exempted from condemnation, remained subject to the substituted milder right of pre-emption on the part of the captors if they should so elect. It might be a hardship that peaceful neutrals should be debarred from shipping to the enemy, in the ordinary course of the trade, goods forming the staple product of their country; but, on the other hand, it would equally be a hardship that a belligerent should be debarred from stopping the supply of stores directly subservient to the maintenance of hostilities by the foe. Pre-emption was a via media for both neutral and belligerent, but attached to this belligerent concession were the conditions—(1) bona fides on the part of the neutral shipper (v); and (2) that the latter should satisfactorily establish that the goods seized were really the produce of his own country (a). Hemp was not, per se, liable to confiscation or pre-emption, but only so if fit for naval purposes (y). In The Neptunus, supra, although tallow was restored as being destined to a non-military port, sailcloth in the same vessel was condemned as being universally contraband. Copper sheets fit for the metalling of vessels have been confiscated, being a "manufactured article immediately serving for the equipment of ships of war," and therefore (u) The Sarah Christina, 1 Rob. 241. (e) The Sarah Christina, supra. (x) The Twee Juffrouwen, 4 Rob. 242; The Apollo, 4 Rob. 158. contrary to treaty (z). Iron in an unmanufactured state has been treated with indulgence, anchors and chains being regarded as directly contraband. On the same reasoning hemp has been more favourably regarded than cordage; and wheat (to be considered presently) than final preparations of it for human consumption. Such articles as saltpetre and sulphur suitable for making gunpowder, and all kinds of machinery for manufacturing arms or ammunition, have always been confiscated by the British Prize Courts. Lead, and the various components of explosive materials, would doubtless be subject to similar treatment. In The Teutonia (a) nitrate of soda seems to have been regarded as contraband. But as Sir W. Scott laid down in The Jonge Margaretha, supra, the most important distinction is whether the articles are intended for the ordinary use of life, or even for mercantile ships' use; or whether they are going with a probable destination to military use. This was the principle applied to a cargo of resin in 1747 (b). Neutral vessels may lawfully have on board such quantity of contraband as may be required for their own use, but they may not carry a larger quantity on the suggestion of the speculation of purchasing other ships (c). The master in the case cited averred that the naval stores which he had on board were wanted for another ship which he designed purchasing at Batavia. The contrary principle, if admitted, would be an endless source of fraud. Ships of war, i.e., vessels evidently built or peculiarly adapted for warlike purposes, destined to be sold to the enemy, are contraband, being, as Sir W. Scott observed in The Richmond (d), most powerful instruments of mischief; but (2) The Charlotte Fox, 5 Rob. 275. (a) L. R. 4 P. C. 171. (b) Nostra Senora de Begona, 5 Rob. 99. (c) The Margaretha Magdalena, 2 Rob. 138. (d) 5 Rob. 325. |