property of a neutral, by reason of the particular situation of the war, or of their destination, as if destined for a military use. The Commercen, 1 Wheaton's U. S. Supr. Ct. Rep., 382, 387. And if they are the growth of a neutral exporting country, they are not contraband; but if they are the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, they are not exempt from the contraband character, even though they are destined to a neutral country. Ib. Compare Maisonnaire v. Keating, 2 Gallison's U. S. Circ. Ct. Rep., 325; The Stephen Hart, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 387; The Springbok, ld., 434; The Peterhoff, Id., 463, 528. In the case of The Bermuda, it was held that printing presses, mate. rials and paper, and Confederate States postage stamps, belonging to the enemy, and intended for its immediate use, were contraband. 3 Wallace's U. S. Supr. Ct. Rep., 514, 552. In very recent treaties, the last two of the three classes, described by Chief Justice CHASE, have been substantially excluded. Upon the foregoing review of the authorities, two rules are suggested for consideration in framing such a Code as this: One, that of the text, which prohibits only goods manufactured for war use; the other, that which forbids all articles which, without further manipulation, could serve for immediate military or naval armament. The latter rule was that adopted by the Italian government, in their instructions to their com manders in the war with Austria, in 1866. Lushington's Naval Prize Law, Intre., p. viii., note. The former rule is, however, so much more definite, and already more or less fully adopted by so many treaties, that it seems preferable, as the more feasible of the two. The leading treaties are as follows: By the treaty between France and Peru, March 9, 1861, Art. XXI., (8 De Clercq, 201,) contraband is defined as including only articles expressly made for war on sea or land. The treaties between the United States and Dominican (Tr.,) 167. provide that the liberty of navigation and commerce shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war, and under this name shall be comprehended: 1. Cannons, mortars, howitzers, swivels, blunderbusses, muskets, fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds, grenades, bombs, powder, matches, balls, and everything belonging to the use of arms; 2. Bucklers, helmets, breast-plates, coats of mail, accoutrements, and clothes made up in military form and for military use; 3. Cavalry belts and horses, with their harness; 4. And gen36 erally, all offensive or defensive arms, made of iron, steel, brass, copper, or of any other material prepared and formed to make war by land or at sea. The treaty between the United States and the Two Sicilies, Art. III., Dec. 1, 1855, 11 U. S. Stat. at L., 639, enumerates as contraband: cannons, mortars, petards, grenades, muskets, balls, bombs, gun-carriages, gunpowder, saltpetre, matches, troops, whether infantry or cavalry, together with all that appertains to them; as also every other munition of war, and generally every species of arms, and instruments in iron, steel, brass, copper, or any other material whatever, manufactured, prepared, and made expressly for purposes of war, whether by land or sea. The treaty between the United States and Venezuela, Art. XIII., Aug. 27, 1860, 12 U. S. Stat. at L., 1143, enumerates as contraband the following: gunpowder, saltpetre, petards, matches, balls, bombs, grenades, carcasses, pikes, halberds, swords, belts, pistols, holsters, cavalry saddles and furniture, cannons, mortars, their carriages and beds, and generally all kinds of arms, ammunition of war, and instruments fit for the use of troops. By the treaty between the United States and the Dominican Republic, Art. XIV., Feb. 8, 1867, 15 U. S. Stat. at L., (Tr.,) 167. all merchandise and things not comprehended in the articles of contraband explicitly enumerated and classified in the treaty, shall be held and considered as free, and subjects of free and lawful commerce, so that they may be carried and transported in the freest manner by the members of both nations, even to places belonging to an enemy, excepting only those places which are at the time besieged or blockaded. See also Katchenovsky's Prize Law, by Pratt, p. 118. It will be observed that saltpetre, matches, and horses mentioned in the foregoing treaties are not included in the definition given in the above Article. The rule there proposed is intended to protect belligerents' rights, and at the same time avoid the mischiefs which result from subjecting other classes of property to capture, and the uncertainty which attends the endeavor to maintain the existing rules. It is not necessary here to review the intricate mass of authorities on questions that would be superseded by the adoption of such a rule as is here proposed. If it were thought preferable to include all articles which may subserve the purpose of the war, the following clause might be added to Article 859: "And all other articles necessary and intended for the maintenance of armaments and combatants." Goods on board ship exempt from capture. 860. All goods of whatever character, on board a ship that is exempt from capture, and not exceeding in quantity that which may be required for the use of the ship and her crew, are exempt from detention or cap ture. Lushington's Naval Prize Law, p. 35, § 168. Contraband documents. 861. Documents are contraband, when they are official communications from or to officers of a hostile nation, and fitted to subserve the purposes of the war, but not otherwise. Sir William Scott interprets "despatches," treated of in the decisions as warlike or contraband communications, to be "official communications of official persons, on the public affairs of the government." The Caroline, 6 Ch. Robinson's Rep., 465. But to this rule there is an exception in the case of communications to or from a neutral nation, or the hostile nation's ministers or consuls resident in the neutral nation. As to the effect of war upon the mail service, see Article 915. Contents of mails not contraband. 862. The contents of mails upon mail packets, owned or employed by any nation, are not contraband of war. This rule is suggested as a proper one, although the contrary is now recognized. Lushington, (Naval Prize Law, Introd., p. xii.,) says, that to give up altogether the right to search mail steamers and bags, when destined to a hostile port, is a sacrifice which can hardly be expected from belligerents; citing Desp. of Earl Russell to Mr. Stuart, November 20, 1862, Parliamentary Papers, No. Amer., No. 5, 1863. As to suspension of mail service, see Article 915. Detention and confiscation of contraband. 863. Things which are contraband of war are liable to capture and confiscation, and persons who are contraband of war are liable to capture and detention, in the manner provided in this Book; but the ship or contents thereof, not being contraband, are not liable to condemnation nor detention, except as provided by articles 871 and 877. This rule is drawn from recent treaties, which provide that articles of contraband, which may be found in a vessel bound to an enemy's port, shall be subject to detention and confiscation, leaving free the rest of the cargo and the ship that the owners may dispose of them as they see proper. See the treaties between the United States and Bolivia, May 18, 1858, Art. XIX., 12 U. S. Stat. at L., 1003. Venezuela, Aug. 27, 1860, XIII., 12 Id., 1143. The harsher rules now in force between other nations may be briefly indicated thus: The penalty for carrying contraband goods is confiscation of the goods and the interest which the owner of them may have in the ship or in other goods on board. The ship in all cases forfeits her right to freightage on the contraband goods, and all right to expenses resulting from her detention. A ship carrying contraband goods with simulated papers, or in disre gard of express stipulations by treaty, is confiscated, with any interest which her owner has in other goods on board. Lushington's Naval Prize Law, p. 39, §§ 187-189. See also The Springbok, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 434; The Stephen Hart, Id., p. 387. The penalty for carrying contraband persons or despatches is the confiscation of the ship, and such part of the goods on board as belong to her owner. Lushington's Naval Prize Law, p. 40, § 196 ; p. 42, § 205. A ship which is contraband is liable to be confiscated, together with such part of the goods on board as belong to her owner. Id., p. 42, § 208. See also The Bermuda, 5 Wallace's U. 8. Supr. Ct. Rep., 28, 59. In Carrington v. Merchants' Ins. Co., 8 Peters' U. S. Supr. Ct. Rep., 495, it was held to be a general rule that the penalty of confiscation attended the carriage of contraband goods to an enemy, when their capture is made in transitu; and that it applied to the vessel and remaining cargo, only when there has been some actual co-operation, on their part, in a meditated fraud upon the belligerents, by covering up the voyage under false papers and with a false destination. But that when the contraband goods have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has not been usual to apply the penalty to the ship or cargo upon the return voy age, although the latter may be the proceeds of the contraband. And the same rule should seem, by analogy, to apply to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it had terminated. In the case of The Isabella Thompson, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 377, it was held, that a neutral consignee, at a neutral port, of a cargo delivered there by a vesssel which had brought it frɔm a blockaded port of the enemy, acquired perfect title to it, as against persons who captured it as prize on its subsequent transportation on a neutral vessel, from such neutral port to another neutral port. Upon the presumption that the cargo had been unlawfully brought from a blockaded port, and had been directly laden from the first vessel into the second vessel, the latter with her cargo might be properly brought into port for adjudication. And had any solidarity of interests between the two vessels in the entire voyage from the enemy's port to the last neutral port, been established by the proofs, or any complicity between them in the enterprise, the captors might well invoke the judgment of the court in condemnation of the enterprise. If the mild rule suggested in the foregoing Article be adopted, it should perhaps be provided that sailing for a port of an enemy with false or simulated papers, or using false colors shall be a ground for confiscating the ship, and possibly also the cargo on board belonging to the owner of the ship. If the rule be thought too advanced for general adoption, it is suggested that it be declared that contraband goods subject the ship which is carrying them to detention and confiscation. Freightage of contraband. 864. A ship in which contraband of war is captured, forfeits the freightage thereof. The Peterhoff, 5 Wallace's U. S. Supr. Ct. Rep., 28, 61. . By the present rule a belligerent nation is bound to pay to a neutral carrier an adequate remuneration for the carriage of goods which are seized upon his ship as contraband of war. And the adequacy of the compensation due for freightage is determined by the terms of the charter party of the ship; for, as stated by Twiss, (Law of Nations, pt. II., p. 155, § 80,) considerations of various kinds may have influenced the parties to the contract of affreightment, and may have rendered a contract for an advanced rate of freight real and fair between those parties, but the freight as a burden upon the belligerent captors, does not come loaded with these considerations. But the standard, by which the liability of the belligerent captor toward the neutral ship owner is to be measured, is the rate of freightage given for the carriage of similar goods under ordinary circumstances. |