gagements between Prussia the ship will be confiscated, together with the entire cargo". The carrying of a contraband cargo is held under all circumstances by English Prize Courts to work a forfeiture of the freight 25. This is a rule recognised by Bynkershoek 2, and the Courts of the United States of America 27 have adopted it. By the ancient law, as already observed, the ship, which had succeeded in carrying a contraband cargo to the enemy, was liable to be seized and confiscated on its return voyage. The severity of this law is still maintained in the case where the vessel has succeeded in carrying its contraband cargo to its destination by means of false papers, and the return cargo has been condemned together with the vessel, even in cases where the cargo has not been purchased with the proceeds of the contraband articles 29. Treaty-En- $150. A somewhat singular innovation upon the practice, which has prevailed amongst the Nations. of Europe in regard to Contraband of War, has been introduced into the Treaty-engagements between the America. United States of America and Prussia. The earliest Treaty-engagements between these two Powers on this subject occur in a Treaty of Amity and Commerce signed at the Hague on 10 Sept. 1785, and those engagements were renewed in a more complete manner in a subsequent Treaty signed on 11 July and the United States of 24 Règlement de 26 Juillet 1778, à l'egard des Navires des Etats neutres, qui seraient chargés de marchandises de contrebande destinées à l'ennemi, ils pourront être arrêtés, et les dites marchandises seront saisies et confisquées ; mais les bâtiments et le surplus de la cargaison seront relâchés, à moins que les dites marchandises de contrebande ne composent les trois quarts de la valeur du chargement; auquel cas les navires et la cargaison seront confisqués en entier. Traité des Prises Maritimes, par A. de Pistoye et Ch. Duverdy, Tom. I. p. 392. 25 The Mercurius, 1 Ch. Rob. p. 288. 26 Quæstiones Juris Publici, L. I. c. 10. 27 The Commercen, 1 Wheaton, p. 382. 28 The Nancy, 3 Ch. Rob. p. 122. The Margaret, 1 Acton, p. 336. 1799. By Article XIII of the latter Treaty it is provided as follows: "And in the same case of one of the contracting parties being engaged in war with any other power, to prevent all difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying however a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in a case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port nor further detained, and shall be allowed to proceed on her voyage. All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, belts, cartouch-boxes, saddles and bridles, beyond the quantity necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger ought to have; and in general whatever is comprised under the denomination of Belligerents may fere with Trade arms and military stores of what description soever, shall be deemed objects of Contraband." The provisions of this Article have been renewed by the twelfth article of the Treaty of Commerce concluded between Prussia and the United States of America on 1 May 182829, which is now in force. § 151. As the exercise of Belligerent Right can have not inter- no place within the territory of a Neutral State, a belligerent cannot interfere jure belli with any branch within the of trade, which is carried on within the jurisdiction jurisdiction of a Neu- of a Neutral State. Trade only becomes Contraband tral State. of War, when the merchandise is transported beyond the jurisdiction of a Neutral State, and is on its way to an enemy's ports, or to an enemy's ships upon the High Seas 30. A neutral Nation is not bound to prohibit its subjects from trading in any article whatsoever with merchants who frequent its ports, and who may be the subjects of belligerent Powers, for the sovereignty of a neutral Nation within its own. territory is as absolute in regard to Nations which are at war with one another, as in regard to Nations which maintain relations of peace with one another. The duty of a neutral Nation, as such, towards belligerent Nations, is comprised in one word, impartiality. It is not the duty of a neutral Nation, as such, to undertake to prevent merchants, who frequent its ports, from carrying out of its jurisdiction the articles which they may have purchased, 29 Martens, N. R. VII. p. 619. Preussens Staatsverträge, p. 852. 30 The proclamation of King Charles I (anno 1625) is directed against any ships that shall sail with intention to pass to any of the King of Spain's countries or dominions, or to any of the King of Spain's ships, being on the sea. (Robinson's Collectanea Maritima, p. 59.) The majority of the Judges of the Supreme Court of the United States in the case of the Commercen, Wheaton, I. p. 382, were disposed to apply the principle of Contraband to merchandise, which was being carried to an enemy's army in a neutral country. on the ground that those articles may be destined to the uses of a belligerent Power; it is the business of every belligerent Power to enforce its Rights of War, if it sees fit, on the High Seas, or within the enemy's territory. A neutral Nation may indeed bind itself by Treaty-engagements with a belligerent Nation not to allow any merchants to purchase within its jurisdiction certain articles, if they are to be carried to the ports of the adverse belligerent; but the observance of such Treaty-engagements will be inconsistent with neutrality, unless the neutral Nation should apply the same prohibition equally to all merchants intending to carry such articles to the ports of either belligerent. It is not however the practice of Nations to undertake to prohibit by their territorial laws merchants from purchasing in their ports those articles, which a belligerent Power may confiscate to its own uses jure belli, if it finds them on the High Seas, in the course of transport to the ports of his enemy, much less is it the practice of neutral Nations to confiscate such articles after purchase, whilst they are within its jurisdiction. A Belligerent alone has any right jure belli to take possession of that, which is the property of another person. Mr. Webster, in a letter to Mr. Thompson, of July 8, 184231, has well observed, in his character of Secretary of Foreign Affairs to the President of the United States of America, that "the trade in articles contraband of war is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of Nations or particular Treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, of Wheaton's Elements, Part iv. c. 3. § 26. p. 571. 31 Webster's Works, VI. p. 452. cited in the sixth edition has been supplied with arms and munitions of war, the Government of the United States, nevertheless, was not bound to prevent it, could not have prevented it without a manifest departure from the principles of neutrality, and is in no wise answerable for the consequences." "The To the same effect Klüber has observed 32, practice of Nations received in Europe at the present day permits a commerce in time of war between neutrals and belligerents. It has only subjected it to certain restrictions with regard to the immediate necessities of war, and in respect of places under blockade. It does not forbid neutrals to sell to the Subjects of a belligerent Power articles which serve immediately to the uses of war, when the belligerents purchase the articles in the neutral country and export them themselves. If, on the contrary, a neutral state or its subjects transport such articles to one of the belligerents, it is a violation of neutrality, and the merchandise is then styled Contraband of War.'" 6 A modern French naval writer, M. Ortolan 33, has to a similar purpose laid great stress upon the terms Commerce de transport,' as being that alone which is contraband or illicit. "A neutral state," he writes, "which permits its subjects to carry on a passive trade in such objects, that is, which allows the subjects of either belligerent indiscriminately to come and purchase articles in its markets, to be transported at their own cost and risk and in their own ships, does not violate its neutrality, nor can it be said to take part in the war because it allows free access to its ports, and maintains for all Nations the same rights, which they had before war broke out, of 32 Droit des Gens. § 288. Tom. II. L. III. c. 6. p. 158. |