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writers, and amidst the fluctuations of practice amongst Nations, the British Courts of Admiralty, in adjudicating upon questions of Contraband of War, have endeavoured, in cases where there have been no treaty engagements on the subject, to pursue a system which should recommend itself to the approval of mankind by its accordance with Reason and by its moderation. They have not hesitated to maintain the doctrine of Conditional Contraband; but they have modified the penalty, when the cargoes have been the produce of the country from which they were exported, and have been staple articles of its commerce. "In the practice of this Court," says Lord Stowell, "there is a relaxation which allows the carrying of these articles (pitch and tar), being the produce of the claimant's country; as it has been deemed a harsh exercise of a belligerent right to prohibit the carriage of these articles, which constitute so considerable a part of its native produce and ordinary commerce. But in the same practice this relaxation is understood with a condition that it may be brought in not for Confiscation, but for Preemption, no unfair compromise, as it should seem, between the belligerent's rights, founded on the necessities of self defence, and the claims of the neutral to export his native commodities, although immediately subservient to the purposes of hostility 0. Again, British Courts have shown indulgence to articles, which are in their native and unmanufactured state. Thus, unwrought iron has been treated with lenience, whilst anchors and other instruments fabricated out of it have been confiscated. Hemp has been more favourably considered than cordage, and wheat than the final preparations of it for human uses. Further, they have allowed the particular

80 The Sarah Christina, Ch. Rob. p. 241.

81 The Jonge Margaretha, I Ch. Rob. p. 194; ibid. p. 195.

destination of the ship to be taken into account to rebut the presumption of the articles in question being destined for belligerent purposes; and in the case of ship-timber have made a distinction, according as the particular destination of the vessel was to a port of general commerce, or a port of naval armament. In these and other cases whilst the Prize Courts have not hesitated to maintain the extreme right of a belligerent to prohibit all trade with the enemy, which is calculated, under circumstances, to subserve the purposes of war, they have allowed equitable deductions to be made from the exercise of that right, wherever the bona fides of the neutral trader, or the innocuous character of the actual trade itself, was capable of being established.

$143. The expression "conditional Contraband" Difficulty of specifyhas been designedly used in the preceding passage ing articles to mark the contrast with "absolute Contraband" of conditionally conWar. The term "conditional Contraband" is intended traband. to denote such articles as are ancipitis usûs, and accordingly are not always, but only under certain conditions, unlawful merchandise for neutrals to carry to an enemy. Certain Publicists, in discussing the unsettled character of the conditions, under which certain articles may be free at one time, and at another time unfree, for neutrals to convey to the enemy's country, have expressed an opinion that it would be desirable, if Nations would settle by some common compact, what articles to the exclusion of all other articles shall be deemed Contraband of War. It is obvious, however, that the necessities of a Continental Power in time of war may not be the same with the necessities of an Insular Power: for instance, horses may be necessary to enable an army to move by land, whilst naval stores will be necessary

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to enable a navy to move by sea. Horses 82 may accordingly be prohibited with justice to be conveyed by a neutral merchant to the ports of a Continental Power, whilst naval stores may by parity of reason be with justice prohibited to be carried to the country of an Insular Power. On the other hand, horses will be useless appendages to a fleet, whilst naval stores will be equally unserviceable to land forces. There are without doubt certain articles, which all Nations have agreed in practice to regard as unlawful for neutral merchants to convey by sea to the dominions of a belligerent Power, and such articles, if captured upon their voyage, are by all Courts declared to be lawful Prize of War to the captors. If however it should be desirable in the interests of International Commerce, that some attempt should be made to render the law of conditional Contraband less vague, the opinion, which Sir Leoline Jenkins submitted to King Charles II, in regard to a cargo of pitch and tar, which had been captured and confiscated by the Spaniards, may be worthy of attention. "Nothing," said that eminent civilian, "ought to be judged contraband by the Law of Nations, but what is directly and immediately subservient to the uses of war, except it be in the case of besieged places, or of a general Notification made by Spain to all the world, that they will condemn all the Pitch and Tar they meet with." If a Belligerent Power at the commencement of a war should notify to all Neutral Powers what are the articles of ambiguous use (ancipitis usûs) which it intends to confiscate, if they should be intercepted by its cruisers in the course of transport on the High Seas to the enemy's dominions, neutral merchants would have a warning

82 Russia has never allowed list of Contraband in any of her horses to be enumerated in the treaty engagements.

analogous to that, which is conveyed to them by the Notification of a blockade, after which Notification a belligerent Power is held to be entitled by the Law of Nations to capture and confiscate all vessels and cargoes, which attempt to trade with a blockaded port. As an instance however of the difficulties which are in the way of Nations coming to any common agreement, as to what articles shall be conditionally Contraband of War, Mr. Robert Ward refers to the case of Bulls' Hides, as being goods "which are in themselves seemingly a very innocent article of traffic, and in the American war Neutrals might, for a long time, have been safely permitted to supply them to Spain. But when the floating batteries, destined for the destruction of Gibraltar, were fitting at Algeziras, and it was known that Hides were to be the chief article of defence to be used in that famous attack, I have no doubt that a ship loaded with Hides, and destined for that port of equipment, with a knowledge that they were then wanted, might very justly have been stopped, and even confiscated 83. "

doctrine of

bunals.

§ 144. The general doctrine of the British Prize General Courts on the subject of Contraband of War is to be British gathered from the decisions of those Courts during Prize trithe wars of the first French Revolution. In the recent war of 1854-56 with Russia there was hardly any occasion for the subject of Contraband of War to be discussed in any British Court, seeing that the Allied Powers placed all the ports and coasts of Russia both in the Baltic and in the Black sea under Blockade, and the proceedings in the British Prize Courts were instituted for the most part in cases of neutral commerce, to punish attempts to

83 Ward's Essay on Contraband, London, 1801, p. 248.

violate the Blockade. The British Courts of Prize have however invariably confiscated all instruments and munitions of war, under which head are embraced all kinds of cannon and guns with their appurtenances, such as ammunition and carriages, arms of every description, and all military equipments and military clothing. To these may be added articles in a natural or imperfectly prepared state, which are used almost exclusively for purposes of war, such as saltpetre and sulphur suitable for making gunpowder, and all kinds of machinery for manufacturing arms or ammunition. In addition to these articles the British Courts have condemned vessels s evidently built for warlike purposes, such as gunboats and mortar-boats destined to be sold to the enemy, and all kinds of articles which are not in their native and unmanufactured state, and which are fitted for the building and equipment of ships of war, such for instance as masts, spars, rudders, sails, sail-cloth 85, cordage, rigging, anchors 6, and sheet-copper 87. Articles on the other hand which are susceptible of being used for military and naval purposes, but are in a native and unmanufactured state, have been dealt with by the Courts as articles of equivocal use, which may or may not be condemned as Prize of War, according to the character of the port from which they are exported, and of the port to which they are bound. If they are for instance the produce of the country from which they are exported,

84 The Brutus before the Lords 27 July 1804, cited in Appendix to 5 Ch. Rob. p. 408. The Richmond, 5 Ch. Rob. p. 325. 85 The Neptunus, 3 Ch. Rob.

p. 108.

86

87 The Charlotte, 5 Ch. Rob. p. 277. Sheet-copper was enumerated amongst articles of contraband "serving directly to the equipment of vessels" in article 10 of the treaty of 1794

86 The Stadt Embden, 1 Ch. between Great Britain and the Rob. p. 29.

United States.

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