Слике страница
PDF
ePub

of intriguing women ; but if they are not stamped with the character of public communications, this court cannot pursue the consequence to the penalty of those persons who may be made the vehicles of conveying such a correspondence. It has been argued truly, that whatever the necessities of the negotiation may be, a private merchant is under no obligation to be the carrier of the enemy's despatches to his own government. Certainly he is not. And one inconvenience to which he may be held fairly subject, is that of having his vessel brought in for examination, and of the necessary detention and expense. He gives the captors an undeniable right to intercept and examine the nature and contents of the papers which he is carrying; for they may be papers of an injurious tendency, although not such, on any à priori presumption, as to subject the party who carries them to the penalty of confiscation, and by giving the captors the right of that inquiry, he must submit to all the inconveniences that may attend it.” The ship and cargo were restored on payment of the captor's expenses.

The carrying of despatches by a neutral from a hostile port to a consul of the enemy resident in a neutral country, is not a ground of condemnation. (The Maddison, Edw. 224.) When despatches from an agent of the enemy are carried by a neutral ship, going from a neutral port to the port of the enemy, the plea of ignorance on the part of the neutral master will be admitted ; but not so where they are carried from one port of the

enemy to another, in which case the master is bound to greater vigilance as to what papers he carries. (The Rapid, Edw. 228.) A neutral merchant

a

a

a

vessel asserted to be carrying despatches for the government of its own country cannot set up that employment as a ground of protection for a voyage otherwise illegal; and even if such a claim were given on the part of the government itself, it would be a serious question how far a neutral state possesses the right of imparting such protection. The Drummond, 1 Dod. 103.)

Hemp, the produce of Russia, exported by a Danish merchant, would be confiscable, even under the relaxation which allows neutrals to export that article only where it is of the growth of their own country; but to a Dane, hemp is expressly enumerated among the articles of contraband in the Danish treaty (additional article, July 4, 1780); and to say that a Dane might traffic in foreign hemp, whilst he is forbidden to export his own, would be to put a construction on that treaty perfectly nugatory. (Lord Stowell, in The Ringende Jacob, 1 Rob. 90.) In The Apollo, however (4 Rob. 158), in relaxation of the strict principle, it was held, that hemp, being the produce and property of the exporting country, and carried even in a vessel not belonging to that country, is not liable to confiscation. The Evart Evarts (4 Rob. 354) was a case of a cargo of hemp going from Lubeck to Amsterdam, and claimed for merchants of Lubeck. In the bills of lading it was described as pass hemp : on that point a doubt arose as to the particular character of pass hemp, a term not remembered to have occurred before. Lord Stowell said :-* It would be too hard to restrain these terms to the produce of their own particular territory; but as hemp is now held to be contraband in its general character, it lies on the claimants to show that there

is anything in the particular circumstances of the case to vary that character, and to entitle it to any exemption. On this point, therefore, I shall hold that it was incumbent on the claimants to show that the hemp was the growth of those neighbouring districts, whose produce they are usually employed in exporting in the ordinary course of their trade. As this has not been done, I shall pronounce this cargo to be contraband, subject to the inquiry which has been directed to be made, as to its quality, from the official persons in his Majesty's dock-yard.” In a subsequent case, The Jonge Hermanus (ib. 95), where the value was represented as too small to bear the expense of the captors, the court said :-“ Torse is so like hemp that, if it is permitted to be carried without examination, the enemy would be very well supplied with hemp. It is necessary that such cargoes should be brought in for examination.” In The Gute Gesellschaft, (ib. 94), hemp of an inferior quality—Cordilla hemp-reported by the officer of the King's yard, at Woolwich, not fit for naval purposes, was held not contraband, and the cargo was ordered to be restored, on payment of the captors' expenses.

Copper in sheets, fit for the sheathing of vessels, is contraband, under treaty. In The Charlotte Fox (5 Rob. 275), the question was respecting a quantity of copper in sheets, taken on a voyage from Stockholm to Amsterdam, and claimed as the property of merchants in Sweden. It was contended that this copper was to be deemed contraband, more particularly under the terms of the Swedish treaty (25th July, 1803, article 1), by which “ the supply of all manufactured

[ocr errors]

articles immediately serving for the equipment of ships of war was prohibited. Lord Stowell condemned that part of the cargo which was reported fit for the sheathing of vessels. “In ordinary cases the rule is that one article of contraband quality will affect all the parts of the cargo on board belonging to the same proprietor ; but this is a new case, respecting the construction of a treaty, on which a difference of opinion may have been entertained. I shall, therefore, not apply the old rule in this case, but direct the undisputed articles to be restored.”

Iron is an article than which none in nature, perhaps, comes more exactly under the description of an article of promiscuous use; it is a commodity subservient to the most infinite variety of human uses. It is an article which, going to a port of naval equipment, may very probably be applied as a naval store, but it may be too much to decide merely on this inference, that it is an article absolutely hostile; nor can it be said that because unwrought iron is excepted in some treaties, as not contraband, therefore, where no exception is expressed, it is to be considered as contraband.

Pitch and tar are decidedly contraband in their nature; yet, when the produce of the claimant's own country, they have been exempted from the penalty attaching upon contraband in general, as it has been deemed a harsh exercise of a belligerent right, to prohibit a material branch of a neutral's natural trade. “ Pitch and tar,” says Lord Stowell, in The Sarah Christina (1 Rob. 237), “are now become generally contraband in a maritime war ; they have been condemned as such by the highest authority in this

[ocr errors]

a

country. In the practice of this court there is a relaxation, which allows the carrying of these articles, 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 pre-emption." In The Twee Juffrowen (4 Rob. 158), tar and pitch, not the produce of the exporting country, were condemned as contraband. “There can be no doubt,” said Lord Stowell (The Jonge Tobias, 1 Rob. 329), “in this case, but that the tar is liable to condemnation, as unclaimed, and also as contraband, being taken going from a port of the country of which it could not be the produce." “ In the war of 1700,” writes Valin (Comment. sur l'Ordonnance, Des Prises, 1.3, tit. 9, art. 2),"pitch and tar were comprehended in the list of contraband, because the enemy treated them as such, except when found on board Swedish ships, these articles being of the growth and produce of their country. In the treaty of commerce concluded with the King of Denmark by France, the 23rd of August, 1742, pitch and tar were also declared contraband, together with rosin, sail-cloth, hemp and cordage, masts and ship timber. Thus, as to this matter, there is no fault to be found with the conduct of the English, except where it contravenes particular treaties, for in law these things are now contraband, and have been so since the beginning of the present century, which was not the case formerly, as it appears by ancient treaties, and particularly that of

« ПретходнаНастави »