briefly referring to the contraband question, Mr. Bayard adverted to the fact that at the time of the seizure the port of Chimbote, to which the vessel was apparently bound, was in the possession of the Chilean forces, so that the property, if it could originally have been considered contraband, was to be regarded as having ceased to be so for want of a hostile destination. In this relation, he cited the cases of The Abby and The Lisette (6 Robinson's Admiralty Reports, 392), and added: "The Chilean statement embodies an urgent effort to show that, by analogy at least, the Peruvian Government notes seized were liable to condemnation as contraband of war. authority, however, is cited in support of that pretension, which can not be acquiesced in. Still, it may be acknowledged that with the lapse of time the just rights of belligerents may require an addition to the articles heretofore regarded as contraband of war." (Mr. Bayard, Sec. of State, to Mr. Godoy, Chilean min., April 11, 1885, MS. Notes to Chilean Leg. VI. 337.) No Money, silver plate, and bullion, when destined for hostile use or for the purchase of hostile supplies, being contraband of war, where a foreign vessel entered New Orleans under the license of the President's proclamation of May 12, 1862, the determination of the question as to whether articles of this class, part of her outward-bound cargo, were contraband, devolved upon the Federal general commanding in that city. Believing them to be so, he was authorized to order them to be removed from her, and her clearance to be withheld until his order should be complied with. United States v. Diekelman, 92 U. S. 520. Printing presses, materials, and paper, and postage stamps, belonging to the enemy, and intended for his immediate use, are contraband. The Bermuda, 3 Wall. 514, 552. Artillery harness, men's army bluchers, artillery boots, government regulation gray blankets, are, when they have a hostile destination, contraband. The Peterhoff, 5 Wall. 28, 58; cited in 5 Am. Law Rev. 259. In numerous treaty provisions, as in that between the United States and France of 1778 (art. 24), "horses," or "horses with their furniture," are classed as contraband. 66 See Lee, At. Gen., 1796, 1 Op. 61. Horses, saltpetre and sulphur may be placed first as subjects of the widest usage. It has always been the practice of England and France to regard horses as contraband; in a very large number of treaties they are expressly included; in none are they excluded except a few contracted by Russia, and in those between the United States and other American countries, the latter however confining the prohibition to cavalry mounts." Hall, Int. Law (5th ed.), 657. The preponderance of authority at the end of the eighteenth century was that horses were presumptively contraband, and that a shipment of horses to a port of a belligerent was presumptively for military uses. The Atlantic (1901), 37 Ct. Cl. 17. In this case there were 38 horses on a vessel of 85 tons burden. But, in another case, where there were only 5 horses on a vessel of 98 tons burden, the rest of the cargo, consisting of cattle and fowls, and the port of destination was neither besieged, blockaded, nor, so far as was known, garrisoned, it was held that the horses would not be presumed to have been intended for military use. (The Juno, 38 Ct. Cl. 465.) April 29, 1898, the Italian ambassador at Madrid was orally advised that instructions had been issued to Spanish naval officers temporarily to suspend, in regard to sulphur, the application of the royal decree of April 23, concerning contraband of war. This resolution was confirmed by a note of May 31, 1898, the Spanish Government reserving the right to restore sulphur to the contraband list, should its interests require it, but promising not to do so without sufficient notice, so that pending contracts might be performed. The Italian ambassador replied June 3, 1898, accepting the notification of Spain's resolution, but expressly reserving the question of principle. It was understood to be the opinion of the Italian Government that sulphur could not properly be considered as contraband of war, since it was used in many innocent arts and had ceased to be an ingredient of the higher class of gunpowders. June 8, 1898, there appeared in the official Imperial Gazette, at Berlin, an announcement that the Spanish ambassador had informed the German Government that sulphur, which had been included in the royal decree of April 23 as contraband of war, was no longer to be so considered. Mr. Draper, ambass. at Rome, to Mr. Day, Sec. of State, No. 227, June 9, Mr. White, ambass. at Berlin, to Mr. Day, Sec. of State, June 11, 1898, See, also, Mr. Moore, Act. Sec. of State, to Sir J. Pauncefote, British The master of a ship, who, just prior to the war between the United States and Spain, had taken on board at Port Empedocle, Sicily, a quantity of sulphur for New York, was justified, on hearing that war had begun, in unloading the sulphur and storing it in a warehouse, and was not obliged to delay his voyage and reship the sulphur because of reports in the press that Spain, as afterwards proved to be the case, would revoke her declaration that sulphur was contraband of war. The Styria . Morgan (1902), 186 U. S. 1. With reference to the proposal in the negotiations at Peking in 1901 to prohibit China from importing articles used in the manufacture of arms and munitions of war, the American diplomatic representative was instructed: "The materials principally employed in the manufacture of arms and ammunition are reported by the War Department to be as follows: Brass, copper, tin, niter, lead, charcoal, guncotton, sulphur, alcohol, nitroglycerine, sulphuric acid, nitric acid, picric acid, mercuric fulminate, raw cotton; steel tubes and hoops, forged and oil tempered. . The prohibition of several of the materials mentioned, would, unless destined for arms and ammunition factory, be impossible. The object would seem to be the prevention of the setting up of plants. The exclusion of gun and cartridge machinery would be necessary, but this inhibition is not regarded by the United States as important." Mr. Hay, Sec. of State, to Mr. Rockhill, special commissioner, tel., March 19, 1901, For. Rel. 1901, App. 365. "It has been held by this country, and our officers have been so instructed, that the term 'contraband of war' includes only articles having belligerent destination and purpose. Such articles have been classed under these two heads: "1. Those that are primarily and ordinarily used for military purposes in time of war, e. g., arms and munitions of war, military material, &c.—articles of this kind being usually described as absolutely contraband. "2. Those that may be, and are, used for peaceful or warlike purposes according to circumstances, such articles being usually described as conditionally contraband. "Articles of the first class destined for ports of the enemy or places occupied by his forces are always contraband of war. Articles of the second class are contraband of war only when actually and especially destined for the military or naval forces of the enemy. Coal and provisions are among the articles which are only conditionally contraband." Lord Lansdowne, British Sec. for For. Aff., to Sir C. Hardinge, British ambass. at St. Petersburg, Aug. 10, 1904, Parl. Papers, Russia, No. 1 (1905), 13. III. GOVERNMENTAL LISTS. § 1251. "6. The following things are considered contraband of war: "Portable arms and artillery, mounted or in detached pieces; ammunition for firearms, such as projectiles, fuses, balls, priming, cartridges, cartridge tubes, powder, saltpeter, sulphur; the material and ammunition of explosive instruments, such as mines, torpedoes, dynamite, pyroxylin, and other fulminating substances; the material of artillery, either for fortifications or for the field, such as carriages, caissons, cartridge chests, campaign forges, canteens, pontoons, etc.; objects of military equipment and dress, such as cartridge-boxes, knapsacks, armor, sappers implements, drums, saddles and harness, articles of military dress, tents, etc., and in general all objects destined to land or sea forces. "Such objects, when found on board neutral vessels and destined to an enemy port, may be seized and confiscated, save the quantity which is necessary for the ship on which the seizure is made. 7. The following acts are assimilated to contraband of war, and are forbidden to neutrals: The transportation of enemy troops, and that of dispatches and correspondence of the enemy, and the furniture of enemy ships of war. "Neutral ships taken in the commission of the offense of such contraband may, according to the circumstances, be seized and even confiscated." Translation of Russian Decree, relating to Privateering, Neutral Trade, 6. Sont réputés contrebande de guerre les objets suivants: 7. Sont assimilés à la contrebande de guerre les actes suivants, interdits Les navires neutres pris en flagrant délit de semblable contrebande peuvent être, selon les circonstances, saisis et même confisqués. "62. The list of Goods Absolutely Contraband comprises:"Arms of all kinds and machinery for manufacturing Arms. Ammunition and materials for Ammunition, including Lead, Sulphate of Potash, Muriate of Potash (Chloride of Potassium), Chlorate of Potash, and Nitrate of Soda. Gunpowder and its materials, Saltpetre and Brimstone; also Gun-Cotton. Military Equipments and Clothing. Military Stores. Naval Stores, such as Masts (Staadt Embden, 1 C. Rob. 27. Charlotte, 5 C. Rob. 305), Rudders, and ship Timber, Hemp (Gute Gesellschaft Michael, 4 C. Rob. 94. Apollo, 4 C. Rob. 161. Evert, 4 C. Rob. 354) and Cordage, Sail-cloth (Neptunus, 3 C. Rob. 108), Pitch and Tar (Jonge Tobias, 1 C. Rob. 329. Twee Juffrowen, 4 C. Rob. 242. Neptunus, 6 C. Rob. 408); Copper fit for sheathing Vessels (Charlotte, 5 C. Rob. 275); Marine Engines, and the component parts thereof, including Screw-Propellers, Saddle-Wheels, Cylinders, Cranks, Shafts, Boilers, Tubes for Boilers, Boiler-Plates, and FireBars; Marine Cement, and the materials used in the manufacture thereof, as Blue Lias and Portland Cement; Iron in any of the following forms-Anchors, Rivet-Iron, Angle-Iron, Round Bars of from to of an inch diameter, Rivets, Strips of Iron, Sheet Plate-Iron exceeding of an inch, and Low Moor and Bowling Plates. "63. All Goods fit for purposes of war and peace alike, (not hereinbefore specified as Absolutely Contraband), on board a vessel which has a hostile destination, are Conditionally Contraband, that is, they are contraband only in case it may be presumed that they are intended to be used for purposes of war. This presumption arises when such hostile destination of the Vessel is either the Enemy's Fleet at Sea or a hostile Port used exclusively or mainly for Naval or Military Equipment (Jonge Margaretha, 1 C. Rob. 188. Peterhof, 5 Wallace, 58). 64. The list of Goods Conditionally Contraband comprises :-Provisions and Liquors fit for consumption of Army or Navy (Jonge Margaretha, 1 C. Rob. 191. Haabet, 2 C. Rob. 174. Edwards, 4 C. Rob. 68. Ranger, 6 C. Rob. 125). Money. Telegraphic Materials, such as Wire, Porous Cups, Platina, Sulphuric Acid, and Zine (see Parliamentary Papers, North America, No. 14, 1863, p. 5). Materials for the construction of a Railway, as Iron Bars, Sleepers, &c. Coals (see Lord Kingsdown's Speech in the House of Lords, May 26, 1861). Hay. Horses. Rosin (Nostra Signora de Begona, 5 C. Rob. 98). Tallow (Neptunus, 3 C. Rob. 108). Timber (Twende Brodre, 4 C. Rob. 33). 65. It is part of the prerogative of the Crown during the war to extend or reduce the lists of Articles to be held Absolutely or Conditionally Contraband, subject, however, to any Treaty Engagements binding upon Great Britain. |