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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 complaint 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.” Where inno- Upon the subject of contraband, it has become cent goods are
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 unlawful, 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 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 patches contraband, sub- in the list of contraband, and deemed a practice of jecting vessel to confiscation,
a character so noxious, as justly to subject the ship
· The Staadt Emdon, 1 Rob., 26.
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.
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 belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with other malig. nant 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 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.
• 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 war. 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.
The right of The third and only remaining exception to the visitation and search a belli- general rule, which accords to neutrals the unmogerent, right lested pursuit of their accustomed commerce, is that
resulting from the rights of belligerents to enforce the law of nathe previous exception, which prohibits their commerce 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 contraband trade, which right would be almost nugatory, 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 which the doctrine is discussed at length, and in resistance to
the right of a judgment which of itself is sufficient to place search. the learned judge in the highest position as an authority in the law of nations: “I stand with con
all fair principles of reason, upon the distinct authority of Vattel, upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down, that by the law of nations, as now understood, a deliberate and continued resistance to search on
· Bynkershoek, Qu. Jur. Pub., Lib. I., c. xiv.
the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of a confisca
Chancellor Kent says: “The duty of self-preser. vation 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.
The right of search is strictly a war right, and
does not exist, except by treaty stipulation, in time Applies to of peace. It is a right which is confined to pri merchant vessels only.
vate 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. How exer- The right of visitation and search must be concised.
ducted 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
The Maria, 1 Rob., 368. 2 Kent's Com., I., 153 et seg. * 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, 1 Wheat., 238.
5 The Anna Maria, 2 Wheat., 327; 2 Mason, 439.