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nations her declaration of war, whereupon the lat-
ter 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 sor.
ereign of those merchants, as, on the other hand,
the

power at war does not impute to the neutral

sovereigns these practices of their subjects.” Where inno- Upon the subject of contraband, it has become

a maxim, metaphorically expressed, that prohibited

articles are of an infectious nature, and contaminate fiscation ap- the whole cargo. The innocence, therefore, of any plies to all.

particular article, if mixed with such as are unlaw-
ful, will not protect it from confiscation.'

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 avow.
edly for the purpose of disposing of innocent ar
ticles, the whole property becomes liable to seizure

and confiscation. Hostile dis- 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

· The Staadt Emdon, 1 Rob., 26.
· The Margaret, 1 Acton, 335.
The Trende Sostre, 6 Rob., 390, note.

cent goods are
mixed with
contraband
the rule of con-

2

jecting vessel to confiscation

owned by

owner of the

Confiscation of

cient law for

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traband with

modern prao

to confiscation, and also the cargo, if the proprietor and cargo, if of the ship is at the same time 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. 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 the enemy; by the general analogies of the law, for the owner relaxation of of the ship has engaged it in an unlawful commerce, tico. 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 belongs 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."?

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

the principal difficulty arose in relation to the article of provisions; on the part of England by ted States.

visions on the

Great Britain and the Uni

· 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.

? The Ringande Jacob, 1 Rob., 89; The Jonge Tobias, 1 Rob., 330; vide also Note to The Franklin, 3 Rob., 221.

Mr. Hammond, it being insisted that by the law of natious all provisions were to be considered as contraband, in the case where depriving the enemy was one of the means employed to reduce him to reasonable terms of peace. This position was strenuously resisted on the part of the United States, through Mr. Randolph, Mr. Jefferson, and Mr. Pinckney, contending that corn, flour, and meal, being the produce of the soil and labor of the country, were not contraband, unless carried to a place actually invested. Upon this question no other agreement was attained than that provisions were not generally contraband, but might become so, according to the existing law of nations in certain cases, and those cases were not defined, leaving to each party that construction of the law of nations which it had assumed.

As to other articles of merchandise, the treaty provides, that “all arms and ammunition and implements serving the purpose of war, all materials serving directly for the building and equipment of vessels, with the exception of unwrought iron, and fir-plank, tar and rosin, copper in sheets, sails, hemp, cordage, etc.,” shall be considered contraband of

The treaty, so far as its provisions relate to this subject, has always been regarded as merely declaratory of the conceded law of nations, and introducing no stipulation which would not have been, by that law, binding upon the parties without the treaty.

war.

The right of The third and only remaining exception to the visitation and search a belli- general rule, which accords to neutrals the unmogerente gright in lested pursuit of their accustomed commerce, is that established

tions.

resulting from the rights of belligerents to enforce the law of na-
the previous exception, which prohibits their com-
merce in contraband commodities, and that is, the
right of visitation and search.

This general right of belligerents has uniformly
been upheld by all writers of authority in the law
of nations. It has always been regarded as a sort
of necessary incident to the right of prohibiting con-
traband trade, which right would be almost nuga-
tory, but for the incidental right of ascertaining the
existence of the contraband trade by a visitation
and search of the neutral vessel.

Bynkershoek," Valin, Vattel, De Martens, all agree in according the right to belligerents, upon the ground that the conveyance of contraband goods by neutrals cannot be prevented without visiting and searching neutral vessels, and that a resistance to the exercise of the right subjects the resisting neutral to the penalty of confiscation. Lord Stowell says, in the great leading case, in Confiscation

the penalty of which the doctrine is discussed at length, and in resistance to

the right of judgment which of itself is sufficient to place searches ne learned judge in the highest position as an thority in the law of nations: “I stand with conence upon all fair principles of reason, upon the inct authority of Vattel, upon the institutes of er great maritime countries, as well as those of own country, when I venture to lay it down, by the law of nations, as now understood, a erate and continued resistance to search on

kershoek, Qu. Jur. Pub., Lib. I., c. xiv. 1, Ord. de la Ma., Liv. III., Tit. 9, Art. 12. 1, Droit des Gens, Liv. III., c. vii., § 114. Iarten's, Precis., Lib. VIII., c. vii., § 321.

the part of a neutral vessel, to a lawful cruiser, is
followed by the legal consequence of a confisca.

tion.?1

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Chancellor Kent says: “The duty of self-preservation gives to belligerent nations this right, and the doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized in its fullest extent by the courts of justice in this country.”

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Applies to merchant vessels only.

How exercised.

The right of search is strictly a war right, and does not exist, except by treaty stipulation, in time of peace. It is a right which is confined to private merchant vessels, and does not apply to public ships of war. The immunity of public ships and vessels of war from the exercise of any jurisdiction, other than that of the sovereign power to which they belong, has been nniformly asserted and conceded.

The right of visitation and search must be conducted with as much regard to the safety of the vessel detained as is consistent with a thorough examination of the character of the vessel.

If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages."

In the exercise of the right, the cruiser may resort to stratagem, as by assuming the disguise of a friend

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The Maria, 1 Rob., 368. 2 Kent's Com., I., 153 et seq. 3 Le Louis, 2 Dob., 248; The Antelope, 10 Wheat., 119.

* The Prins Frederick, 2 Dod., 451; The Exchange vs. McFadden, 7 Cranch., 116; L'Invincible, i Wheat., 238.

5 The Anna Maria, 2 Wheat., 327; 2 Mason, 439.

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