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any, in what
gerents, and having shown that neutrals are in one sense parties to every war, we now come to enquire whether the property of a neutral is in any, and if in
affected by the war. As to the terri. tory and realty of the neutral, sufficient has already been said to explain their position. Our attention will therefore be confined to neutral personalty, and may be limited to neutral personalty afloat. It is said, on the one hand, that the existence of the war does not extinguish the right of the neutral to enjoy his commercial relations with either or both belligerents. It is held, on the other hand, that it is his duty to act with strict impartiality between the combatants, and that this impartiality precludes him from rendering belligerent succour to either. These two propositions appear irreconcilable; for (1) it is impossible at the same time to exercise the right of commerce, and not to succour the belligerents; and (2) impartiality would necessarily admit the free sale even of the implements of war to each. Such being the case, we seek in vain for a definite principle by which to determine the limit to the commerce permitted by the Law of Nations to the neutral with either belligerent. Traffic, however, in certain things, known by the term contraband of war, has, by common consent, been prohibited to the neutral.
Contraband of War. The articles usually included,' says Professor Leone Levi, as contraband of war are cannons, mortars, fire-arms, pistols, bombs, grenades,
1 Grotius distinguishes between, Ist, things which are useful only for the purposes of war; 2nd, those which are not so; and 3rd, those which are susceptible of indiscriminate use in war and peace, €.g., money, provisions, ships, and naval stores. Vattel includes timber and naval stores in the first division. Bynkershoek strenuously contends against admitting into the list of contraband articles those things which are of promiscuous use in peace and war.
Valin and Pothier both concur in declaring that provisions (munitions de
bullets, balls, muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, belts, and cartouche boxes. These articles are of a direct and immediate use in war, and are exclusively used for war purposes. But many articles commonly used in time of peace may, under certain circumstances, be held to be contraband, Horses have been considered as liable to capture; so naval stores, and even pitch and tar, though a relaxation has been made in favour of Sweden and other countries where such articles constitute the special produce of the claimant's country. Raw materials are less objectionable than manufactured goods; hemp is more favourably considered than cordage, and iron than anchors and other instruments made out of it. As regards coal, the destination may determine whether it is contraband or not. If sent to ports where steam vessels are ordinarily calling to load, it would be only an article of commerce; but if sent to arsenals or great naval ports, it might be held to be contraband. The catalogue of contraband goods has undergone many variations from time to time; but now a general agreement exists among all nations. It is not easy to see wherein the difference in principle exists between British ship-building and Swedish pitch and tar manufactures. However, the line of demarcation is sufficiently obvious. The transport of those things held to be contraband of war by a neutral subject to either belli
bouche) are not contraband by the Prize Law of France, or by the Common Law of Nations, unless in the single case where they are destined to a besieged or blockaded place. (Wheaton, pp. 772—781).
Since the beginning of the present century, naval stores have generally been regarded as contraband. Sir W. Scott (Lord Stowell) declared tar, pitch, and hemp going to the enemy's use, liable to be seized as contraband in their own nature. (The Maria, 1 Rob. A. R., p. 372.)
1 International Commercial Law. Introduction, p. 46.
gerent, simply works a forfeiture of those things when captured by the opposite belligerent, whereas a neutral sovereign suffering military persons or vessels of war to leave his territory for the purpose of aiding one belligerent, gives to the other belligerent a just cause of war.
Assuming the articles specified to be singled out from all others, and branded with a certain character, we enquire, In what does the violation by the neutral of the belligerent's rights respecting them consist ? The answer is, It is not in possessing or manufacturing, as the case may be, those articles, nor is it in giving, lending, or selling them to a belligerent; the wrong is solely confined to the act of carrying them to the belligerent. This wrong is not considered to be a wrong committed by the Sovereign, consequently the penalty attached to the wrong does not fall upon the Sovereign, but upon the actual perpetrator of the wrong. Neutral Governments therefore merely warn their subjects of the danger attached to the traffic, and leave the subject free to engage in it at the risk of having his ships and cargoes captured.
Of the same nature with the carrying of contraband goods is the transport of military persons or dispatches in the service of the enemy. A neutral vessel, which is used as a transport for the enemy's forces, is subject to confiscation if captured by the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service exempt her. It is however difficult to define the number of military persons necessary to subject a vessel to confiscation; since fewer persons of high quality and character may be of much more importance than a much larger number of persons of lower condition. The fraudulent carrying of the despatches of the enemy also subjects the neutral vessel, in which they are transported, to capture and confiscation. But the carrying of the despatches of an ambassador or other public minister of the enemy, resident in a neutral country, is exempted.
i See Levi's International Commercial Law, Introduction, p. 47, for authorities quoted in support of this proposition.
In general, where the ship and cargo do not belong to the same person, the contraband articles only are confiscated, and the carrier master refused the freight to which he is entitled upon innocent articles, or those condemned as enemy's property. But where the ship and the innocent articles of the cargo belong to the owner of the contraband, they are all involved in the same penalty. And even when the ship and the cargo do not belong to the same person, the carriage of contraband, under the fraudulent circumstances of false papers and false destination, will work a confiscation of the ship as well as the cargo.4
The general rule as to contraband articles is laid down by Sir W. Scott, thus : Under the present understanding of the Law of Nations, you cannot generally take the proceeds in the return voyage. 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 the actual prosecution of such a voyage, the penalty is not now generally held to attach.' But when false papers and false destina
1 Wheaton, p. 797. 4 Ib., p. 807.
3 Ib., p. 806. 5 The Imina, 3 Rob. A. R., p. 168.
tions are resorted to in order to conceal the real object of the expedition, a return cargo, the proceeds of the outward cargo is liable to condemnation.
As the question is, Has there been an injury arising to the belligerent from the employment in which the vessel is found ? it is in the judgment of Prize Courts immaterial whether the master knew, or was ignorant of the character of the service on which he was engaged.?
The Right of Visit and Search.3—The right of the belligerent to seize and confiscate contraband of war, naturally carries with it the right to hunt for and find it, which right has brought in its wake the right of visit and search. The right of visiting and searching
• merchant ships upon the high seas,' says Professor Levi, 'whatever be the ships, whatever be the cargoes, whatever be the destination,-is a right of the lawfully commissioned cruisers of belligerent nations; for it does not appear what the ship, or the cargo, or the destination is, till she is visited and searched ; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. The custom is, that when a cruiser meets a vessel, he fires a gun, which is a signal for the merchant vessel to stop and to submit to the search. If the vessel summoned does not stop, the belligerent cruiser has the right to pursue her and to force her. And should the master of such vessel resist the right, both the ship and all the property are at once subject to confiscation. 1 Wheaton, p. 810.
? Ib., p. 802. 3 The right of visitation and search is an exclusively belligerent right. It does not exist in time of peace, unless expressly given by international compact. It is confined to the private vessels of the neutral, the entire immunity of public vessels from every species and purpose of search being generally conceded. (See Wheaton, p. 209 et seq.)