The second list should include all articles capable of military use. They would be deemed contraband of war only when it was clear they were about to be employed for warlike purposes and were not likely to supply the needs of a peaceful population. Both lists would require periodical revision, for which provision should be made in the international document which called them into existence. of contraband Few subjects in the whole range of International Law have given rise to more loose writing and thinking than that on which we are at present engaged. It The essentials of therefore becomes necessary to use careful analy- guilt in the matter sis in order to discover exactly what it is that trade. constitutes the offence which a belligerent may deal with in the manner described in the beginning of this chapter. We must note in the first place that neutral traders are free to sell arms and other contraband goods within the neutral territory to agents of the warring powers. It is only when they export such articles to one belligerent that the right of capture is acquired by the other. Transport within the neutral territory is not forbidden; but it is an offence to send contraband of war across the frontier to a belligerent, whether by land or by sea. In other words the commerce passif of recent continental writers is allowed, but the commerce actif is left to the mercy of the belligerent who suffers from it. This is an old and well-established rule. Bynkershoek lays it down in the terse sentence, Non recte vehamus, sine fraude tamen vendimus.1 Great Britain has always acted upon it. The United States adopted it at the commencement of their national existence. It is the universal doctrine of the Prize Courts of all civilized peoples, and has never been controverted, except by those theorists who would lay upon the 1 Quæstiones Juris Publici, Lib. I., Ch. 22. neutral state the unendurable burden of preventing all traffic in munitions of war between its subjects and the belligerent powers. We may state it broadly and without fear; but in doing so we must not omit one small qualification. A merchant vessel is free to carry such arms and munitions as may be deemed necessary for its own defence against pirates and enemies. Secondly, it is clear that a belligerent destination is essential. This was brought out in the case of the Imina,1 a neutral vessel captured in 1798 by a British cruiser. At the moment of seizure she was carrying a cargo of ship timber from Dantzic. Her original destination had been Amsterdam; but on learning that it was blockaded her master had altered his course and made for the neutral port of Embden. Lord Stowell released the vessel on the ground that "goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful.” But these words must not be taken apart from their context and the circumstances which caused them to be spoken. Embden was simply a place of neutral trade, and goods bound for it were about to enter a neutral market. But had it contained a belligerent fleet, articles ancipitis usus destined for the fleet, and not for the wharves and warehouses of the neutral city, would undoubtedly have been condemned as contraband. The case of the Commercen 2 is decisive on this point. The vessel was Swedish, and Sweden was neutral in the war of 1812-1814 between Great Britain and the United States. The Commercen was engaged in a voyage from Cork to the neutral Spanish port of Bilboa. But she carried a cargo of grain, and it was shown that her captain meant to deliver it to the British fleet then lying in Spanish waters. The vessel was captured before she reached her destination by an American privateer; and 1 Robinson, Admiralty Reports, III., 167–170. 2 Wheaton, Reports of the Supreme Court, I., 382; Pitt Cobbett, Leading Cases in International Law, p. 225. the case finally came on appeal before the Supreme Court, which condemned the cargo on the ground that it was destined for the use of hostile forces. The principle would hold good were the terminus of the voyage wholly unconnected with ports of any kind. To supply the fleets or single cruisers of a belligerent with munitions of war on the open sea would be as clear a case of contraband trade as carrying a consignment of rifles to one of his garrison towns. It is the hostile destination which is essential; and the fact that such destination is nearly always a port must not cause us to ignore the few cases where it is nothing of the kind. Nor must we forget that the neutral shipmaster is not allowed to escape condemnation by ingeniously interposing a neutral destination between the commencement of his voyage and its real termination in hostile territory, or the place where a hostile fleet or army is lying. In such a case the doctrine of continuous voyages1 applies, and the goods will be confiscated on account of the ulterior belligerent destination of the vessel. Moreover, the converse of this rule holds good. In cases where the destination of the vessel is undoubtedly neutral, the destination of the cargo is accounted neutral as well, unless perhaps the very strongest proof to the contrary is forthcoming.2 The intent of the owner is not the ruling factor in determining the liability of the goods to capture and condemnation, though Bluntschli and other writers lay great stress upon it.3 The mental condition of the trader is likely to vary with the chances of the market and the dangers of the voyage. What it may be at the time of seizure is immaterial, if the goods are about to be delivered into the enemy's hands, and are of a kind to give direct and serious aid to his warlike operations. Thirdly and lastly, we must bear in mind that the offence is completed when a neutral vessel leaves port with a belligerent destination and a contraband cargo, and is "deposited" 1 See § 276. 2 For a discussion of this doctrine in connection with the trade in munitions of war between European ports and Lorenco Marques during the Boer war, see Appendix, § VI. 3 Bluntschli, Droit International Codifié, § 802; Kleen, Contrebande de Guerre, pp. 37-43; Wheaton, International Law (Dana's ed.), note 226. when the destination is reached and the cargo delivered. As Lord Stowell said, in the case of the Imina, "The articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. Under the present understanding of the law of nations you cannot generally take the proceeds on the return voyage. "1 This is the general rule; but it is capable of modification to meet the needs of justice. The principle which underlies it is that the penalty should attach as long as the offence exists. The offence generally exists from the beginning to the end of the outward voyage, and ceases to exist the moment the contraband goods are placed in the hands of the enemy. But if during the voyage the guilty destination has been changed for an innocent one, as happened in the case of the Imina cited above, or if a hostile destination becomes friendly through surrender or cession, then a capture made after the change has been effected will not result in condemnation. Similarly, if the outward and the homeward voyages are but parts of one transaction, conducted by the same persons and planned from the beginning as one adventure, and if on the outward voyage contraband goods and fraudulent papers are carried, the return voyage will not be regarded as a separate and innocent expedition. It is, however, somewhat doubtful whether this view would be acted upon at the present time. It was laid down by Lord Stowell, in the case of the Nancy; but continental publicists condemn it as an undue extension of belligerent rights, and the British Admiralty Manual contents itself with the statement that a commander should detain a vessel he meets on her return voyage with such a record as we have described behind her.1 1 Robinson, Admiralty Reports, III., 168. 2 Ibid., III., 127. 8 Cf. Ortolan, Diplomatie de la Mer, Liv. III., Ch. vi. § 280. The usual penalty for carrying contraband is the confiscation of the contraband goods. The few treaties which band. provide for temporary detention only are excepThe penalty for tional,1 and the mildness of their provisions has carrying contranot been generally copied. In the Middle Ages the vessel also was forfeited, on the ground that the trade was illegal and therefore the ship-owners who engaged in it ought to suffer. The change to the milder practice of modern times began with the great growth of international trade in the seventeenth century, and, though a few of the rules at present applied by Prize Courts seem to be survivals of the old severity, the interests of commerce have on the whole made themselves felt as powerfully as in other departments of the law of maritime capture. The taint of contraband is held to attach in the first instance to the goods. It extends, however, to the vehicle that carries them when the vessel and the forbidden cargo belong to the same owner. In that case the ship also is condemned; and if the owner of the contraband articles is part owner of the ship, his share in her is confiscated. This rule proceeds upon the principle that "when a man is concerned in an illegal transaction, the whole of his property embarked in that transaction is liable to confiscation; "2 and leads to the curious result that a neutral may carry the contraband goods of another neutral without any further penalty than the loss of freight, but may not carry his own contraband goods except at the risk of the loss of his vessel. It applies to innocent goods when their owner owns the contraband portion of the cargo. The French in 1778 endeavored to extend it under the name of infection or contagion 1 e.g. The treaty of 1785 between the United States and Prussia. See Treaties of the United States, p. 903. 2 Lord Stowell in the case of the Yonge Tobias, Robinson, Admiralty Reports, I., 330. |