rials of gunpowder, coals, articles in a manufactured state chiefly useful in war, or the component parts of armaments and military equipments. The chief circumstance of inquiry would naturally be the port of destination. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which a military expedition is fitting out.-the presumption of military use would be raised, more or less strongly according to the circumstances. The nature and character of the war, as being maritime or not, and the known special needs of the enemy, are also to be considered. If it is proved, as a fact in the case, that the articles are destined directly to military use,—as, if they were to be delivered to an enemy's fleet, or army, or war department, they would be condemned for the further reason of being involved in a non-neutral trade. * ** * But it is not necessary that there should be a proved intent to deliver into military hands to make the case one of contraband. The neutral will usually send his goods-whether purely contraband or ancipitis usus, the one as well as the other-to a private consignee, for sale in the market. He usually has, in fact, no intent in the matter but a commercial one, to sell his goods for the highest price. If his mortar and loaded shells will get a higher price from a humane society, to be placed on the coast to aid in rescuing shipwrecked mariners, or if his gunpowder will sell better to be used in blasting rocks, to build a church, his consignee will probably make such sales. The expectation or preference of the neutral for one use or another, belligerent or peaceful, of his goods, irrespective of their price, can rarely be ascertained by a prize court as a fact; and, if articles useful in war come within a belligerent's control, the belligerent government may buy them, or, in case of necessity, seize them. making compensation, without regard to the wishes of the owner or his agent. The truth is, the intent of the owner is not the test. The right of the belligerent to prevent certain things getting into the military use of his enemy, is the foundation of the law of contraband; and its limits are, as in most other cases, the practical result of the conflict between this belligerent right, on the one hand, and the right of the neutral to trade with the enemy, on the other. Belligerent interests might well contend, that any merchandise sent into his enemy's country gives that enemy aid or relief, moral, financial, or physical. But to prevent such trade, would be to end all neutral commerce. Neutral interests, therefore, insist on the strictest limits of the war-right of seizure, and have, at times, striven. to confine the rule to instruments which are completed, and are of exclusively military use. The result of this conflict has left rather an undefined and irregular line. Articles of doubtful use the belligerent seeks to condemn, on evidence or presumptions that they were in fact intended to be, or would in fact become, whatever the intent, a direct contribution to the military force of his enemy. The chief maritime belligerents have enforced this right, while the chief neutrals have argued against it, in their books and diplomatic letters. and sought to restrict it in their treaties. So, where articles are not of a military character, but suitable for household food, as breadstuffs, the belligerent claims the right to capture them, if bound to a port under the stress of actual seige, where the fate of the place may depend on the mere question of food. The ground is, that the cir cumstances necessarily bring the food into the category of a direct supply of the military necessities of the enemy. Fuel. Dana's Wheaton, Note 226. During the Crimean war, the English stopped coals on their way to a Russian port; but the Ministry said, in the debate in the House of Commons, that coals were to be regarded as ancipitis usûs. The royal proclamation of 13th May, 1859, issued during the war between France, Sardinia, and Austria, warns British subjects against carrying contraband, without attempting to define it. To an inquiry, addressed by British merchants to the Foreign Office, the government declined to decide whether, coals were contraband, but added, "It appears, however, to Her Majesty's Government, that, having regard to the present state of naval armaments, coal may, in many cases, be rightly held to be contraband of war, and therefore that all who engage in the traffic must do so at a risk, from which Her Majesty's Government cannot relieve them." The royal proclamation of 13th May, 1861, (at the beginning of the civil war in the United States), warns British subjects against carrying" arms, military stores, or materials, or any article or articles considered and deemed to be contraband of war according to the law or modern usage of nations, for the use or service of either of the said contending parties." On the 26th May, a debate springing up in the House of Lords on the subject, Earl Granville, after referring to articles clearly contraband, said, "There are certain other articles the character of which can be determined only by the circumstances of the case." Lord Brougham thought coal might be contraband, "if furnished to one belligerent to be used in warfare against the other." Lord Kingsdown said, with more precision, "If coals are sent to a port where there are war-steamers, with a view of supplying them, they become contraband." Dana's Wheaton, Note 226. The principal point in dispute is as to articles admitted to be of ambiguous or uncertain use, when in the enemy's country and in time of war. The best illustration of this class is, perhaps, manufactured spars fully ready to be put into ships; and, in later times, marine steam machinery, in like condition of readiness. One class of writers contends for an absolute rule as to all articles of such descriptions; so that, if, upon the application of the general test. they are left ancipitis usus, they must be free, and no further inquiry can be made for the purpose of ascertaining their probable use in the particular case. Another class of writers contends, that, as to such articles, inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. This is really the point of difference, on principle, among the later writers. The latter rule has been unquestionably the British doctrine, enforced by her Orders in Council and prize courts, recognized in her treaties, and sustained by her statesmen and text writers. (Reddie on Marit. Intern. Law, ii, 456. Phillimore's Intern. Law, iii, 245-284. Wildman's Intern. Law, ii, 210 et seq. Manning's Law of Nations, 282 et seq. Moseley on Contraband, passim.) It may also be said, in the main, to have been the American doctrine. Dana's Wheaton, Note 226. All writers on international law are agreed, that implements and munitions of war, and articles, which, in their actual condition, are of immediate use for warlike purposes, are to be deemed contraband, whenever they are destined to an enemy's country, or to an enemy's use; but, beyond this, there is such a diversity of opinion among text writers that it is exceedingly difficult, if not impossible, to deduce from such works any well established and satisfactory principles to guide our decision on the points in dispute. * And the same discordancy in the definition of contraband is to be found in the conventional law of nations, as established by treaties. the provisions of which are various and contradictory, even of those made, at different periods, between the same nations. The same may be said of marine ordinances and diplomatic discus Again, if we recur to the decisions of prize courts, although we shall find less discordancy, perhaps, than in the other sources of international law, we nevertheless shall encounter a diversity of sentiment, on some points, which it would be vain to attempt to reconcile. Even in the same country, at different periods, the decisions have been varicus and contradictory. Halleck, pp. 577, 580, 582. * * * English authors have generally favored the views of their government in its extension of the list of contraband to all articles of promiscuous use in peace and war. The continental writers, generally, contend against the English extension of contraband. Halleck, p. 579. Articles in a rough state, which may be used for military and naval purposes, may, or may not, be contraband, according to their nature and destined use, as inferred from their immediate destination. Thus, pitch, tar and hemp, destined to the enemy's use, are generally held to be contraband in their nature, but where they are the produce of the neutral country from which they are exported. and are the property of its subjects or citizens, they are exempt from confiscation, except when they are exclusively and immediately des tined to warlike use. Ship-timber, in a rough state, is not in se contraband, but it may become so from its particular character, as masts and spars, or from the character of its port of destination. Copper is not generally contraband, but if in sheets, adapted to the sheathing of vessels, it is condemned. Hemp is more favorably considered than cordage. Rosin is not generally contraband, but is condemned if going to a port of naval equipment. Iron itself is treated with indulgence, but if of such a form as to make it suitable for military or naval purposes, and its immediate destination is for such use, it cannot claim the benefit of exemption. The same rule would probably be applied to all unwrought materials for ship building, and for the construction of marine machinery. Since the introduction of steam as the motive power in ships of war, the question has been much discussed in Europe, whether coals are to be considered as contraband. They would seem now to properly belong to the same class as ship-timber, tar, pitch, and other unwrought materials for ship building and naval stores. In the recent war between the allies and Russia, the English cruisers stopped coals on their way to an enemy's port on the Black sea, though it appears, from an answer already referred to, given in the house of commons by Sir James Graham, that they would be regarded by British cruisers as one of the articles ancipitis usûs, not necessarily contraband, but liable to detention under circumstances that warrant suspicion of their being destined to the military or naval uses of the enemy. Ortolan first expressed the opinion that coals might, or might not, according to their intended use, be classed as prohibited articles; but he afterward corrected this statement, and concluded that they never can, under any circumstances, become contraband of war. This view of the question is ably advocated by Hautefeuille. Halleck, pp. 584, 585; Ortolan, Dip. de la Mer, liv. 3, ch. 6; Hautefeuille, Des Nations Neutrals, tit. 8, sec. 2. Foodstuffs. It is universally admitted, that provisions (commeatus belli) are not, in their own nature, contraband. But while some contend that they never can become so under any circumstances, others hold, (and such is the uniform practice of the British admiralty,) that they may become liable to condemnation by their special destination and intended use. When they are destined to the immediate supply of the military or naval forces of the enemy, the aid thus intended to be given for the prosecution of the war, is so direct and important that the act of transportation is peculiarly noxious, and they are condemned without hesitation. * *Nor, by the established doctrine of the English admiralty, is it in all cases necessary, in order to make provisions contraband, that the destination to the use of the enemy's military or naval forces should be certain. The rule of ancipitis usus is here applied, which deduces the final use from the immediate destination. If destined to a general commercial port, they are presumed to be for civil use, but if to a port whose predominant character is that of naval construction and equipment, they are presumed to be for military use. But such destination alone is not, as a general rule, sufficient to produce a condemnation. It must further appear that the provisions were, from their nature and quality, adapted to military use: since, otherwise, there would be no basis for the presumption that they would have been applied to that use, had their arrival been permitted. Halleck, p. 587. Upon the abstract merits of the question it is impossible to refuse sympathy to the more theoretical writers. They aim at giving the largest freedom that can be secured to the commerce of neutrals: in other words they aim at freeing the trade of persons who, taken in bulk, are probably injured by the mere existence of war, from 55565-18- -20 additional injuries inflicted through the restraints imposed by belligerents for their own selfish objects. But it is useless to represent as law, or to propose as future law, rules which states are not ready to accept; and it is idle to expect them to adopt rules which do not correspond with belligerent exigencies. If these exigencies be taken instead of theory, as a starting point for definition of contraband, the proposition that contraband cannot be limited to munitions of war, and that the articles composing it must vary with the circumstances of particular cases, becomes the simple expression of common sense. There can be no question that many articles, of use alike in peace and war, may occasionally be as essential to the prosecution of hostilities as are arms themselves; and the ultimate basis of the prohibition of arms is that they are essential. The reason that no difference of opinion exists with respect to them is the fact that they are in all cases essential. But it may also happen, after a remote non-manufacturing country, such as Brazil. has suffered a disaster at sea, that to prevent the importation of marine engines would be equivalent to putting an end to the war, or would at least deprive the defeated nation of all power of actively annoying its enemy. Marine engines become as essential as arms. In considering the matter logically therefore the mind must chiefly be fixed upon the characteristic of essentiality; and in determining under what circumstances the seizure of merchandise of double use can be justified the main difficulty is either to find a general test of essentiality, or in a given instance to secure adequate proof that delivery of particular articles would be essential to the prosecution of the war. Hall, pp. 680, 681. In theory it is easy to distinguish between merchandise which, by its nature and absence of a certain kind of destination, is presumably intended for civil use, and merchandise which, by its nature or clear destination, is obviously intended for use by the armed forces of the state. A general test is thus provided. In practice the difficulty need hardly be greater. Cases of permissible seizure might consequently be readily separated from those in which seizure is unwarrantable, could usage be set altogether aside. This however cannot with propriety be done. The policy of nations has, it is true, been governed by no principles; the wish to keep open a foreign market has generally been a motive quite as powerful as the hope of embarrassing an enemy practice is thoroughly confused. Still practice cannot be devoid of authority, and it must be subjected to analysis in a spirit of willingness to give due value to any custom that may appear to have fairly established itself. On the other hand, in view of the exceptional confusion and arbitrariness by which practice is marked, it may reasonably be regarded as of secondary value, and appeal may in the first instance be made to principle. If an inquiry into the due range of contraband be conducted in this manner, it will be possible to classify broadly articles other than munitions of war according to the greater or less intimacy of their association with warlike operations, and consequently, according to the less or greater urgency or peculiarity of circumstance under which a belligerent may fairly prevent their access to his enemy. Hall, p. 682. |