Chapter X: Section II: Contraband of War

[Sidenote: Contraband of War.]

The general freedom of neutral commerce is subject to certain restrictions with respect to neutral commerce. Among these is the trade with the enemy in certain articles, called _Contraband of War_. These are generally warlike stores, and articles which are directly auxiliary to warlike purposes. Writers on this subject have made distinctions between those things useful only for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace.

All seem to agree in excluding the first class from neutral trade; and, in general, admitting the second. The chief difference is about the third class. The last kind of articles--for example, money, provisions, ships, and naval stores, according to Grotius, are sometimes lawful articles of neutral trade, and sometimes not; and the question depends upon circumstances. This is perhaps the truest ground of decision, as we shall see in subsequent illustrations.[166]

Thus, these articles become contraband, _ipso facto_, if carried to a besieged town, camp, or port. So in a _naval_ war, ships and materials for ships, are contraband, although timber and cordage may be used for other purposes, besides fitting out ships of war; and so horses and saddles are not of necessity warlike stores, except when comparing the quality, manufacture, or quantity attempted to be imported into the hostile state, with the circumstances and condition of the war, it appears (if not to be impossible) to be in the highest degree unlikely, that they should be designed for any other purposes besides the purposes of war.[167]

[Sidenote: Provisions, when Contraband.]

Common Provisions are not Contraband in general prize law, except in the single case of being sent to a beseiged or blockaded place.[168]

It is a modern practice, in order to remove all possible doubt as to what goods are contraband, for nations at war to enumerate them particularly in treaties or compacts with neutral states; and such treaties leave the neutral, with which they are made, at liberty to supply the enemy with all goods that are not enumerated in them. These treaties do not operate as a law; but like other treaties, are binding only between the nations that are parties to them.[169]

[Sidenote: Lord Stowell's Opinion on Contraband of War.]

The Opinions of our great English authority, Lord Stowell, on this subject, are contained in two judgments, of which the following is the substance:--

"In 1673, many unwarrantable rules were laid down by public
authority respecting Contraband. It was expressly asserted
by a person of great knowledge and experience in the English
Admiralty, that by its practice _corn, wine, and oil_, were
liable to be deemed contraband. In much later times, many
sorts of provisions, such as butter, salted fish, and rice,
have been condemned as Contraband. The modern established
rule was, that generally they are not contraband, but may
become so under circumstances arising out of the peculiar
situation of the war, or the condition of the parties
engaged in it; among the causes which tend to prevent
provisions from being treated as contraband, one is that
they are of the growth of the country which exports them.

"Another circumstance, to which some indulgence, by the
practice of nations, is shown, is where the articles are in
their native and unmanufactured state. Thus, iron is treated
with indulgence, though anchors and other instruments
fabricated out of it, are directly contraband. Hemp is more
favourably considered than cordage; and wheat is not
considered so noxious a commodity as any of the final
preparations of it for human use. But the most important
destination is, whether the articles are destined for the
ordinary uses of life, or for military uses. The nature and
quality of the port to which the articles are going, is a
test of the matter of fact on which the distinction is to be
applied. 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 ship of war may be
constructed in that port. On the contrary, if the great
predominant character of a port is that of a port of naval
equipment, it shall be contended that the articles were
going for military use, although, merchant ships resort to
the same place, and although it is possible that the
articles might have been applied to civil consumption; for
it being impossible to ascertain the final application of an
article, _ancipitis usus_, it is not an injurious rule which
deduces both ways the final use from immediate destination;
and the presumption of a hostile use, founded on its
destination to a military port, is very much inflamed, if at
the time when the articles were going, a considerable
armament was notoriously preparing, to which a supply of
those articles would be eminently useful."[170]

In a later case he seems to have modified his opinion with respect to undoubted naval stores, either so by nature, or intended as such for the occasion. He says--

"The character of the port is immaterial, since naval
stores, if they are to be considered as contraband, are so
without reference to the nature of the port, and equally,
whether bound to a mercantile port only, or to a port of
military equipment. The consequences of the supply may be
nearly the same in either case. If sent to a mercantile
port, they may be applied to immediate use in the equipment
of privateers, or they may be conveyed from the mercantile
to the naval port, and there become subservient to every
purpose to which they could have been applied if going
directly to a port of naval equipment."[171]

[Sidenote: Controversy between England and America on Contraband Provisions.]

The doctrine of the English Admiralty Court, as to provisions becoming contraband, was adopted by the Government in the instructions given to their cruisers, on the 8th June, 1793, directing them to stop all vessels laden wholly, or in part, with corn, flour, or meal, bound for France, and to send them into a British port to be purchased by Government; or to be released on condition that the master should. give security to dispose of his cargo in the ports of some country in amity with his Britannic Majesty. This was resisted by the Neutral Powers, Sweden, Denmark, and especially the United States.

This order was justified upon the ground, that by the modern law of nations, all provisions are to be considered as contraband, and as such liable to confiscation, wherever depriving an enemy of these supplies is one of the means intended to be employed for reducing him to terms. The actual situation of France, (it was said,) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the various powers engaged in the war; and the reasonings of the text writers applying to all cases of this sort were more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against almost all European Governments; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who had declared war, and were then carrying it on against Great Britain.

This reasoning was resisted by the neutral powers--Sweden, Denmark, and especially the United States. The American Government insisted, that when two nations go to war, other nations who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and ordinary vocations; to carry the produce of their industry for exchange to all countries, belligerent or neutral, (as usual;) to go and come freely without injury or molestation; in short, that the war, (amongst other) should be for neutral purposes, as if it did not exist; the only exceptions being trade in implements of war, or to a place blockaded by its enemy. That there were sufficient treaties to decide what were implements of war. Corn, flour, and meal, were not of the class of contraband.

The result of this controversy was a treaty with the United States in 1794. It confined contraband to military and naval stores; and with respect to provisions not generally contraband, it was agreed,

"That whenever such articles became contraband by the Law of
Nations, and should for that reason be seized, the same
should not be confiscated, but the owners thereof should be
speedily and completely indemnified; and the captors, or in
their default, the Government under whose authority they
act, should pay to the masters or owners of such vessels the
full value of all such articles, with a reasonable
mercantile profit thereon, together with the freight, and
also the demurrage incident to such detention."

The instructions of June, 1793, had been revoked previously to the signature of this treaty; but before its ratification, the British Government issued, in April, 1795, an order in council, instructing its cruizers to stop and detain all vessels laden wholly, or in part, with corn, flour, meal, and other provisions, and bound to any port in France, and to send them to such ports as might be most convenient, in order that such corn, &c., might be purchased on behalf of Government.

This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, constituted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.

A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.

It was, however, urged on the part of the United States, that the 18th article of the Treaty of 1794, manifestly intended to leave the question where it was before, namely, that when _the law of nations_, existing at the time the case arises, pronounces the articles contraband, they may for that reason be seized; when otherwise, not so. Each party was thus left free to decide what was contraband in its own courts of the law of nations, leaving any false appeal to that law to the usual remedy of reprisals and war.[172]

Since the ratification of this treaty, we have a decision of Lord Stowell, in 1799, on this very subject, in the case of the Haabet, which, however, arose on a question of insurance.

"The right of taking possession of provisions is no peculiar
claim of this country; it belongs generally to belligerent
nations: the ancient practice of Europe, or at least of
several maritime states of Europe, was to confiscate them
entirely. A century has now elapsed since this claim has
been asserted by some of them. A more mitigated practice has
prevailed in later times, of holding such cargoes subject
only to a right of pre-emption; that is, to a right of
purchase, upon a reasonable compensation, to the individual
whose property is thus diverted. This claim on the part of
the belligerent cannot go beyond cargoes avowedly bound to
the enemy's ports, or suspected on just grounds to have a
concealed destination of that kind. The neutral can only
expect a reasonable compensation. He cannot look to the
price he would obtain in the enemy's port. An enemy,
distressed by famine, may be driven by his necessities to
pay a famine price; but it does not follow that the
belligerent, in the exercise of his rights of war, is to pay
the price of distress."[173]

"It is a mitigated exercise of war, on which any purchase is
made; and no rule has established that such a purchase shall
be regulated exactly on the same terms of profit which would
have followed the adventure, if no such exercise of war had
intervened; it is a _reasonable_ indemnification, and a
_fair profit_, that is due, reference being had to the price
originally paid by the exporter, and the expenses he has
incurred."

[Sidenote: Neutral Vessels Transporting Enemy's Forces.]

Transporting the _Enemy's Forces_, subjects a Neutral Vessel to confiscation, if captured by the opposite belligerent. Sir Wm. Scott says, in the leading case on this subject--

"That a vessel hired, by the enemy, for the conveyance of
military persons is to be considered _as a transport_,
subject to condemnation, has been in a recent case, held by
this Court, and on other occasions.[174] What is the number
of military persons that shall constitute such a case it may
be difficult to define. In the former cases there were many,
in the present they are fewer in number; number alone is an
insignificant circumstance in the considerations on which
the principles of law on this subject are built; since fewer
persons of high quality and character may be of more
importance than a much greater number of persons of lower
condition. To send out _one veteran general_ of France to
take command of the forces at Batavia might be a much more
noxious act than the conveyance of a whole regiment. The
consequences of such assistance are greater, and therefore
it is what the belligerent has a stronger right to prevent
and punish. In this instance the military persons are
three,[175] and there are besides two other persons who were
going to be employed in civil capacities in the Government
of Batavia. *** It appears to me, _on principle_, to be but
reasonable that, whenever it is of sufficient importance to
the enemy that such persons should be sent out on the public
service, and at the public expense, it should afford equal
ground of forfeiture against the vessel that may be let out
for a purpose so intimately connected with hostile
operations.[176] The fact of the vessel having been pressed
into the enemy's service does not exempt her. The master
cannot aver that he was an involuntary agent."[177]

[Sidenote: Neutral Ships Carrying Enemy's Despatches.]

Carrying the _Despatches of the Enemy_ is also a ground of condemnation.

"In the transmission of Despatches may be conveyed the
entire plan of a campaign, that may defeat all the plans of
the other belligerent, in the world. It is a service,
therefore, which, in whatever degree it exists, can only be
considered in one character--as an act of the most hostile
nature. The offence of _fraudulently_ carrying despatches in
the service of the enemy being greater than other
contraband, some other penalty has to be affixed. The
confiscation of the noxious article would be ridiculous when
applied to _Despatches_. There would be _no_ freight
dependent on their transportation. The _vehicle_ (_i.e._ the
ship) in which they are carried must, therefore, be
forfeited."[178]

[Sidenote: Ambassadors excepted.]

The Despatches of an Ambassador or other Public Minister of the Enemy, resident in a neutral country, are an exception to this rule, being the despatches of persons who are in a peculiar manner the favourite object of the Law of Nations, residing in the neutral country for the purpose of preserving peace and the relations of amity between that state and their own government.

The ambassador of the enemy may be stopped on his passage, but when he has arrived in the neutral country, he becomes a sort of _middleman_, and is entitled to peculiar privileges.[179]

[Sidenote: Penalty for Contraband Trade.]

Under the present Law of Nations, a Contraband Cargo cannot affect the ship; the carrying of contraband articles is attended only with loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with some malignant and aggravating circumstances.[180]

[Sidenote: Additional Penalties.]

The aggravation of fraud justifies additional Penalties; thus, the carriage of contraband with a false destination, will work a condemnation of the ship as well as the cargo; the false destination being intended to defeat the right of pre-emption.[181] Generally, _false_ papers will extend the taint of contraband to the vessel.

It is also an established rule, that the transfer of contraband by a neutral, from one port of a country to another, where it is required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself.[182]

[Sidenote: Return Voyage Free.]

Generally, the proceeds of the Return Voyage cannot be taken. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken _in delicto_, and in actual prosecution of such a voyage, the penalty is not now generally held to attach.[183]