impossible to distinguish between cotton imported for the one purpose and that imported for the other, it was necessary to prohibit its importation altogether. Parl, Papers, Russia, No. 1 (1905), 8, 9. "British India is by far the largest importer of raw cotton into Japan," the value of such importation in each of the years 1901 and 1902 being nearly 40,000,000 roubles. "The quantity of raw cotton that might be utilized for explosives would be infinitesimal in comparison with the bulk of the cotton exported from India to Japan for peaceful purposes, and to treat harmless cargoes of this latter description as unconditionally contraband would be to subject a branch of innocent commerce, which is specially important in the Far East, to a most unwarrantable interference." Sir C. Hardinge, British ambass., to Count Lamsdorff, Russian min. of Hall, in his work on International Law (see 5th edition, 664), says that "the United States have gone so far as to regard cotton as contraband of war when, in their view, it took the place of money." As authority for this statement he cites Wharton's International Law Digest, III. 438, where an extract is given from a note of Mr. Bayard, as Secretary of State, to Mr. Muruaga, Spanish minister, of June 28, 1886. The extract, as thus printed, separated from its context, unfortunately conveys, as an examination of the correspondence will show, an erroneous impression, which has been widely disseminated and which may not be unconnected with Russia's action during the war with Japan in declaring cotton to be contraband of war. The question under discussion between Mr. Bayard and the Spanish minister was not one of contraband in the sense of maritime law. The question at issue was the right fulness of the alleged seizure on land, by military forces of the United States, of a quantity of cotton to which the claimants asserted title under a contract with the Confederate government, which then controlled the supply of cotton and used it as its chief resource for the purchase of arms and ammunition and the payment of current expenses. Under these circumstances, it was held by the American courts, as well as by the military authorities, that cotton within the Confederate territory and control was a legitimate subject of capture. In referring to this fact, Mr. Bayard, in his note to Mr. Muruaga, of June 28, 1886, said that there was no doubt that cotton might, under the circumstances described, be seized as "contraband of war," using the term perhaps unadvisedly and at any rate in an untechnical sense, just as it was applied by General Butler to captured slaves. Mr. Bayard's use of the term, however, gave to Mr. Muruaga an opportunity to point out, as he did in a note of August 13, 1886, that the United States did not during the civil war treat cotton as contraband of war, and that the acceptance of such a proposition would imply an extension of the recognized lists of contraband articles. Mr. Bayard, replying on December 3, 1886, said: "You mistake the position of the United States. when you suppose that it is proposed by us formally to insert cotton on the list of articles contraband of war. . The seizure by the Government of the United States in 1865 is not to be narrowed to a question of contraband. The distinctions as to contraband have grown up from seizures of neutral vessels at sea, when the presumption arising from the ordinary inviolability of a neutral vessel has to be overcome before the seizure can be sustained. Here the seizure was not on board a neutral vessel, or on neutral territory invaded on ground of necessity, but on soil over which the United States had rights of sovereignty, not merely by constitutional title, but by the law of nations and by the law of war. . . It is not needful, nor do I, therefore, say whether cotton purchased in the Confederacy during the war would be liable to seizure as contraband if found on a neutral ship. I propose to stricly construe belligerent rights on the high seas; but the cotton, which is the subject of the present claim, placed as it was by its owners, the present claimants, under what you properly state to be the 'strict surveillance' of the Confederate authorities, was, to the eye of the United States Government when it sought to reclaim the region where such cotton was stored, as much the proper subject of belligerent seizure as would have been a park of artillery." Mr. Bayard to Mr. Muruaga, June 28, 1886, For. Rel. 1887, 1006; Mr. In 1861, on the day after Virginia voted on the ordinance of secession, there came to Fortress Monroe, where Gen. B. F. Butler was then in command, three negroes, who said that they belonged to Colonel Mallory, commander of the Virginia troops in an adjacent place, and who, as it was ascertained, had been employed in constructing a battery. Mallory sent an agent to Butler with a view to recover possession of the negroes. Butler, according to his own statement, replied: "I shall hold these negroes as contraband of war, since they are engaged in the construction of your battery and are claimed as your property. The question is simply whether they shall be used for or against the Government of the United States." Butler, in his autobiography, published in 1892, referring to the phrase "contraband of war," as applied to slaves, says: "The truth is, as a lawyer I was never very proud of it, but as an executive officer I was very much comforted with it as a means of doing my duty." See "Butler's Book," 256-259. V. DESTINATION. 1. MUST BE HOSTILE. § 1255. See supra, § 1250. "In order to constitute contraband of war, it is absolutely essential that two elements should concur-viz. a hostile quality and a hostile destination. If either of these elements is wanting, there can be no such thing as contraband. Innocent goods going to a belligerent port are not contraband. Here there is a hostile destination, but no hostile quality. Hostile goods, such as munitions of war, going to a neutral port are not contraband. Here there is a hostile quality, but no hostile destination." Historicus on International Law, 191. A vessel sailed July, 1798, from Dantzig for Amsterdam; but the master having learned, on calling at Elsineur, that Amsterdam was blockaded, he changed his course for Embden, entered his protest to that effect, and was sailing thither when captured. The cargo consisted of small pieces of timber. Sir W. Scott said: "This is a claim for a ship taken, as it is admitted, at the time of capture sailing for Embden, a neutral port; a destination on which, if it is considered as the real destination, no question of contraband could arise; inasmuch as goods going to a neutral port, can not come under the description of contraband, all goods going there being equally lawful. It is contended, however, that they are of such a nature, as to become contraband, if taken on a destination to a hostile port. On this point, some difference of opinion seems to have been entertained; and the papers which are brought in, may be said to leave this important fact in some doubt. Taking it however, that they are of such a nature as to be liable to be considered as contraband on a hostile destination, I can not fix that character on them in the present voyage. The rule respecting contraband, as I have always understood it, is, that 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 can not generally take H. Doc. 551-vol 7-45 the proceeds in the return voyage. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait, till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach. The master receives information of this fact [the blockade of Amsterdam] at Elsineur, and on consultation with the consul of the nation to which the cargo belonged, changed his purpose, and actually shaped his course for Embden, to which place he was sailing at the time of capture. I must ask then. was this property taken under such circumstances as make it subject to the penalty of contraband? Was it taken in delicto, in the prosecution of an intention of landing it at a hostile port? Clearly notBut it is said, that in the understanding and intention of the owner it was going to a hostile port; and that the intention on his part was complete, from the moment when the ship sailed on that destination: had it been taken at any period previous to the actual variation. there could be no question, but that this intention would have been sufficient to subject the property to confiscation; but when the variation had actually taken place, however arising, the fact no longer existed. There is no corpus delicti existing at the time of capture. In this point of view, I think, the case is very distinguishable from some other cases, in which, on the subject of deviation by the master, into a blockaded port, the court did not hold the cargo, to be necessarily involved in the consequences of that act. It is argued, that as the criminal deviation of the master did not there immediately implicate the cargo; so here, the favourable alteration can not protect it; and that the offence must in both instances, be judged by the act and designs of the owner. But in those cases there was the guilty act, really existing at the time of capture; both the ship and cargo were taken in delicto; and the only question was, to whom the delic tum was to be imputed. In the present instance, there is no existing delictum. neutral port. . The cargo is taken on a voyage to a If the capture had been made a day before. that is, before the alteration of the course, it might have been different; but however the variation has happened, I am disposed to hold. that the parties are entitled to the benefit of it; and that under that variation the question of contraband does not at all arise. I shall decree restitution; but as it was absolutely incumbent on the captors to bring the cause to adjudication, from the circumstance of the apparent original destination, I think they are fairly entitled to their expences." The Imina (Aug. 1, 1800), 3 C. Rob. 167. A Swedish ship, while on a voyage, from Ireland to Spain, with a cargo of corn, shipped under the permission of the British Government for the use of the British forces in Spain, was captured, in April, 1814, by an American privateer. It was contended that the doctrine of contraband could not apply to the case because the cargo was destined to a country which was neutral in the war between Great Britain and the United States. It was held, however, that the cargo was contraband because it was avowedly destined to British military forces. The opinion of the court, which was delivered by Mr. Justice Story, was concurred in by Justices Washington. Todd, and Duvall. Marshall, Chief Justice, with whom concurred Justices Livingston and Johnson, dissented, on the ground that the war in Europe was separable from that in which the United States and Great Britain were engaged, and that, although British troops in every part of the world were legally enemies of the United States, yet the furnishing of supplies to British armies in Spain was not in reality an unneutral act to the prejudice of the United States. The Commercen (1816), 1 Wheat., 382. To the inquiry of an importer as to whether the United States would object to the importation of pyrites and phosphate of soda as contraband articles, the following reply was made: "The Department is not informed of the views of the Spanish Government on this subject, but the articles in question are not generally mentioned in the lists of contraband found in treaties. It is also proper to observe that, where articles classed as contraband are destined for this country, it is not our policy to obstruct their importation." Mr. Moore, Asst. Sec. of State, to Secretary of Treasury, May 7, 1898, 228 MS. Dom. Letters, 341. 2. DOCTRINE OF CONTINUOUS VOYAGES." The doctrine of " Continuous voyages" has already (supra. § 1180) been to some extent discussed in connection with the Rule of the War of 1756. It will now be considered under the head of "Contraband," in connection with which it has had its latest development. In some of the cases in the American civil war it is uncertain whether the doctrine was applied by the court in connection with contraband or with blockade, but, as this question can best be judged by studying the cases as a whole, they are here fully presented under the preponderant topic-that of contraband. |