so exclusively military, that it cannot be applied to civil uses. Swords may be worn as a part of civil dress, and gunpowder may be applied to purposes of sport, amusement, or public rejoicing, yet no one doubts that both are contraband. The matter therefore must be determined by reference to such distinctions as the usage of nations has established (c). Goods going to a neutral port cannot come under the description of contraband, inasmuch as all goods with a neutral destination are equally lawful (d). So it was held, that a cargo could not come under the description of contraband, which was innocently shipped on board a vessel, which sailed in bonâ fide ignorance of war (e). Nor can any question of contraband arise as to goods sold by neutrals in their own country and not conveyed in neutral vessels. A neutral may lawfully sell in his own country to a belligerent arms, ammunition, and other articles, which would be contraband on board a neutral vessel destined to a hostile port (f). But a person is not at liberty to carry to a hostile port a cargo containing, amongst other things, contraband articles with the intention of selling innocent commodities only, and of proceeding with the contraband articles to a neutral port (g). The transfer of contraband articles from one port of a country to another, where they are required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself (h). Gunpowder, arms, and military equipments, and other things peculiarly adapted to military purposes, have been always contraband (i), though, with respect to some of them, the right of pre-emption has been substituted in modern (c) Bynk. Q. J. P. i. x. (d) The Imina, 3 Rob. 167; Val. Tr. v. 6, ix. (h) The Edward, 4 Rob. 68. (i) Bynk. Q. J. P. i. x. Persons practice for that of confiscation, where they are the produce of the country exporting them. Thus sail cloth is universally contraband, even on a destination to ports of mere mercantile equipment (k). So of masts (1), anchors (m), pitch, and tar (n), and hemp (o). But pitch and tar bonâ fide intended for the ship's use as stores are not contraband. The bona fides is a question of evidence, whether the quantity found on board could really be intended for the ship's use. are not, under pretence of a voyage round the world, to carry as much as they please of articles of this noxious nature and then sell them at different ports, where they may immediately become convertible to purposes of war. The term stores is to be liberally interpreted, but still it must be so understood as to be capable of something like a definitive construction (p). A ship peculiarly adapted to purposes of war is contraband as an article of commerce, if intended to be sold for hostile purposes. It cannot, under any point of view, but be considered as a very hostile act to be carrying a supply of a very powerful instrument of mischief, of contraband ready made up, to the enemy for hostile use (q). Thus, where a vessel in every respect fitted for a ship of war was sent on her first voyage to a belligerent port, with instructions to the master to sell her or take goods on freight, but that the owners would prefer selling to freighting, as she was not adapted to purposes of freight, the ship was condemned (r). But where ships of ambiguous use, and previously employed for purposes of trade, (k) The Neptunus, 3 Rob. 108. (1) Itaadt Embden, 1 Rob. 29; The Charlotte, 5 Rob. 305. (m) Per Cur. The Jonge Margaretha, 1 Rob. 189. (n) The Jonge Jobias, 1 Rob. 329; The Neutralitet, 3 Rob. 295; The Twee Juffrowen, 4 Rob. 242; The Sarah Christina, 1 Rob. 237. (0) The Evert, 4 Rob. 354; The Apollo, 4 Rob. 158; The Richmond, 5 Rob. 325. (p) The Richmond, 5 Rob. 334. (q) The Richmond, 5 Rob. 325. (r) The Brutus, 5 Rob. App. 1. were sold under circumstances not indicating a hostile purpose, they were restored (s). In respect of matters of ambiguous use, the catalogue of contraband has varied much, and sometimes in such a manner, as to make it very difficult to assign the reasons of the variations, owing to particular circumstances, the history of which has not accompanied the history of the decisions. In 1673, when many unwarrantable rules were laid down by public authority respecting contraband, it was expressly asserted by Sir Robert Wiseman, then king's advocate, upon a formal reference made to him, that by the practice of the English Admiralty, corn, wine, and oil, were liable to be deemed contraband. "I do agree," says he, reprobating the regula tions that had been published, and observing that rules are not to be so hardly laid down as to press upon neutrals, "that corn, wine, and oil will be deemed contraband." These articles of provision then, were at that time confiscable, according to the judgment of a person of great knowledge and experience in the practice of the Admiralty Court. In much later times, many other sorts of provisions have been condemned as contraband. In 1747, in the Jonge Andreas, butter going to Rochelle, was condemned; cheese was more favourably considered. The distinction appears nice; in all probability, the cheeses were not of that species, which is intended for ships' use. Salted cod and salmon were condemned in the Jonge Frederick, going to Rochelle, in the same year. In 1748, in the Joannes, rice and salted herrings were condemned as contraband. These instances shew, that articles of human food have been so considered, at least, when it was probable that they were intended for naval or military use. Favourable positions have been laid down upon this matter by Wolfius and Vattel, and other writers of the continent, although Vattel expressly admits, that provisions may, under circum(s) The Fanny, &c. ibid. stances, be treated as contraband. The modern established rule is, that generally they are not contraband, but may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. Among the circumstances that tend to preserve provisions from being treated as contraband, one is, that they are the growth of the country which exports them. Another circumstance to which some indulgence is shewn by the practice of nations, is, when the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favourably considered than cordage; and wheat is not considered as so noxious a commodity as any of the final preparations of it for human use. But the most important distinction is, whether the articles were intended for the ordinary use of life, or even for mercantile use, or whether they were going, with a highly probable destination, to military uses; of the matter of fact, on which the distinction is to be applied, the nature and quality of the port to which the articles are going, is not an irrational test. If the port is a general commercial port, it shall be understood that the articles are going for civil use, although occasionally a frigate, or other ships of war, may be constructed in that port. On the contrary, if the great predominant character of the port be a port of military equipment; it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final use of an article ancipitis usûs, it is not an injurious rule, which deduces both ways the final use from the immediate destination: and the presumption of a hostile use founded upon its destination to a military port is very much inflamed, if at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful (t). Cheeses not fit for naval use, but mere luxuries for the use of domestic tables, are not confiscable, though sent to a port of military equipment (u). So of torse, an inferior kind of hemp, unfit for naval purposes. But the captor's expenses were allowed, because torse is so like hemp, that if it were allowed to pass without examination, the enemy would be supplied with hemp (v). But, Dutch cheeses, sent by a neutral merchant from Amsterdam to Brest, being cheeses fit for naval use, and such as are exclusively used in French ships of war, were condemned (w). So, when cheeses fit for naval use, were sent to Corunna, they were deemed contraband; because Corunna, if not in its prominent character, a port of naval equipment, is situated in the same bay with Ferrol and if the supply were permitted to be imported into the bay, it would be impossible to prevent its going on immediately, and in the same conveyance to Ferrol (r). But such cheeses, destined to Quimper, were held not to be contraband. That port, though in the vicinity of Brest, being situated on the opposite side of a projecting headland, or promontory, so as not to admit of an immediate communication, except by land carriage (y). So, such cheeses sent to Bourdeaux, not being a port of naval military equipment in its principal occupation, although smaller vessels of war may be occasionally built and fitted out there, were restored (z). So rosin, going to a port not of military equipment, was held not contraband (a). So tallow, going to Amsterdam, a great mercantile port, as well as a port of military equipment, was (t) The Jonge Margaretha, 1 Rob. 189. (u) The Jonge Margaretha, 1 Rob. 195. (v) The Geselschaft, 4 Rob. 94; The Evert, 4 Rob. 354. (w) The Jonge Margaretha, 1 Rob. 189. (1) The Zelden Rust, 6 Rob. 93. (y) The Frau Margaretha, 6 Rob. 92. (z) The Welvaart, 1 Rob. 195, (n). (a) The Nostra Signora, 5 Rob. 97. |