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As to provi
enemy's ports, is no peculiar claim of this country, it belongs generally to belligerent nations. The ancient practice of Europe, or of several maritime states of Europe, was to confiscate them entirely. A century has not elapsed since this claim has been asserted by some of them. A more mitigated prac- 48 tothe right tice has prevailed in later times of holding such of pre-emption cargoes subject only to the right of pre-emption-confiscation in that is, to a right to purchase, upon a reasonable certain cases. compensation, to the individual whose property is thus diverted. I have never understood, that on the side of the belligerents, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that, on the side of the neutral, the same exact compensation is to be expected, which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for his commodities; if they get there, it does not follow that, acting upon my rights of war in intercepting such supplies, I am under obligation of paying that price of distress."
In strictness, according to the current of authority of the courts, all provisions are contraband. In this rude condition, however, the right of confiscation is waived for the more lenient one of pre-emption; but the rigid rule of confiscation is applied when the provision has been manufactured into a condition for immediate use.1
Vide diplomatic correspondence between Mr. Hammond on the part of England, and Mr. Jefferson and Mr. Randolph on the part of the United States, Sept. 12, 1793, and April 12, 1794; and Mr. Pickering and Mr. Monroe, Sept. 12, 1795. The Com
Destined use, a national
In the determination of the question of contraband, there is no circumstance of so much importance as that of the destination of the cargo in question.
"The most important distinction," says Lord Stowell, in a case already cited, "is, whether the articles were intended for the ordinary use of life, or even for mercantile ship's use, or whether they were going with a very highly probable destination to military use. Of the matter of fact on which the distinction is to be applied, the nature and quality of the port to which the articles are going, is not an irrational test. 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 the port be that of a port of naval military equipment, it shall be intended 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 determine the final application of an article, ancipitis usus, it is not an injurious rule which deduces, both ways, the final use from the 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 mercen, 2 Gall., 269, and 1 Wheat., 382; The Jonge Andrews, 1747; The Zelden Rust, 6 Rob., 93; The Ranger, 6 Rob., 125; The Edward, 4 Rob., 68.
supply of those articles would be eminently useful."
The relaxation of the rule of confiscation of articles which are decidedly contraband in their character, for that of pre-emption, is applied to cases where the article in question (as naval stores) is the product of the claimant's own country; for it is considered that confiscation would be a harsh exercise of a belligerent's right, to prohibit a material branch of the neutral's natural trade.2
With the exception, however, of these cases of relaxation, substituting pre-emption for confiscation, when the merchandise is clearly proved to be contraband, confiscation to the captor ensues as of course. The simple detention of such articles would be an ineffectual method of redress; for it is essential that the apprehension of loss should operate as a check to the avidity of gain, and thus deter neutral merchants from all attempts to supply the enemy with such commodities. It is this necessity, resulting from a proper regard for the nation's welfare and security, which induces the declaration that all such merchandise, destined for the enemy's country, shall be considered lawful prize. "On this account," says Vattel,s "she notifies to neutral
The Jonge Margaretha, 1 Rob., 194; vide also, The Nostra Senora de Begona, 5 Rob., 99; The Neptunus, 3 Rob., 108; The Richmond, 5 Rob., 325; The Brutus, 5 Rob., app. 1; The Jonge Jan, 1 Dod., 458; The Endraught, 1 Rob., 23; The Elonora Wilhelmina, 6 Rob., 331; The Charlotte, 5 Rob., 305; The Mende Brodee, 4 Rob., 33; The Friendship, 6 Rob., 420.
The Sarah Christina, 1 Rob., 237; The Ringande Jacob, 1 Rob., 90; The Apollo, 4 Rob., 158; The Evart Evarts, 4 Rob., 354.
cent goods are
the rule of con
nations her declaration of war, whereupon the latter usually give orders to their subjects, declaring that if they are captured in carrying on such a trade, the sovereign will not protect them.
"This rule is the point where the general custom of Europe seems fixed, after a number of variations; and, in order to avoid perpetual subjects of com plaint and rupture, it has, in perfect conformity to sound principles, been agreed that the belligerent powers may seize and confiscate all contraband goods which neutrals shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants, as, on the other hand, the power at war does not impute to the neutral sovereigns these practices of their subjects."
Upon the subject of contraband, it has become mixed with a maxim, metaphorically expressed, that prohibited articles are of an infectious nature, and contaminate fiscation ap- the whole cargo. The innocence, therefore, of any particular article, if mixed with such as are unlaw ful, will not protect it from confiscation.1
plies to all.
If a neutral would avoid the hazard of seizure, he must exercise circumspection during his entire voyage. Should he touch at an enemy's port with contraband articles on board, though it be avowedly for the purpose of disposing of innocent articles, the whole property becomes liable to seizure and confiscation."
The conveyance of hostile dispatches is included traband, sub- in the list of contraband, and deemed a practice of a character so noxious, as justly to subject the ship
jecting vessel to confiscation,
The Stuadt Emdon, 1 Rob., 26.
The Margaret, 1 Acton, 335.
3 The Trende Sostre, 6 Rob., 390, note.
to confiscation, and also the cargo, if the proprietor and cargo, if of the ship is at the same time the owner of the owner of the cargo. This principle has become firmly estab. ship. lished in a series of cases in the British admiralty,
as well as by the Lords, after the most elaborate and learned discussion.'
cient law for
By the ancient law of Europe, contraband cargo ship as well as rendered the ship as well as cargo liable to con- cargo the andemnation. "Nor can it be said," says Lord Stow-dealing in conell, "that such a penalty is unjust, or not supported traband with by the general analogies of the law, for the owner relaxation of of the ship has engaged it in an unlawful commerce tice. But in the modern practice of courts of admiralty in this country, and I believe of other nations also, a milder rule has been adopted, and the carrying of contraband articles is attended only with the loss of freight and expenses, except where the ship be longs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with other malignant and aggravating circumstances."
visions on the
In the diplomatic correspondence between the Treaty proUnited States and Great Britain, preliminary to subject of conthe treaty of 1794, on the subject of contraband war between of war, the principal difficulty arose in relation to and the Unithe article of provisions; on the part of England by ted States.
1 The Atlanta, 6 Rob., 440; The Constitution, Lords, July 14, 1802; The Sally Griffiths, Lords, Dec. 12, 1795; The Hope, Lords, April 23, 1803; The Trende Sostre, Lords, August 5, 1807; The Lisette, Lords, May 5, 1807; The Constantia, Lords, March 15, 1808; The Susan, Lords, April 1, 1808; The Carolina, 6 Rob., 464; The Madison, Edwards, 224; The Rapid, Edwards, 228; The Drummond, 1 Dod., 103.
2 The Ringande Jacob, 1 Rob., 89; The Jonge Tobias, 1 Rob., 330; vide also Note to The Franklin, 3 Rob., 221.