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longing to Yarmouth, where the cargo lay, or, if there were no such persons, to the opinions of respectable shipwrights there.
In The Eleonora Wilhelmina (6 Rob. 331), Lord Stowell said,-“ So as to other articles applicable for naval equipnient. A ship under the Russian flag was captured on a voyage from Riga to Amsterdam with a cargo
of wainscot pieces, boat masts, common spars and ruckers. Russia, by an order dated November, 1806 (recognized by the British government) had authorized her subjects to trade with France and her allies in innocent articles. As far as the question turns upon the treaty, I am of opinion that the treaty must be held to apply only to cases where one party is in a state of neutrality, and not where both are connected in hostilities against one common enemy. The context of the whole treaty clearly refers to such a trade only, and cannot be extended to the trade of either country at a time when both countries are associated in war, and are bound to contribute their whole force and energy against the common enemy.
It never could be the construction to be put on the order, that it should extend the protection to a mixed assorted cargo, consisting of articles partly innocent and partly noxious.”
In The Charlotte, Koltzenberg (5 Rob. 305), masts and spars
taken in a Lubeck ship on a voyage from Riga to Nantes, being the produce of Russia, and claimed as the property of a merchant in that country, were condemned as contraband. “ Masts are to be considered as contraband, unless protected by treaty." (Also The Staadt Embden, 1 Rob. 29.)
Ship timber, with naval stores and materials for ship building, and even corn, grain and victuals of all sorts, coming to the dominions of the enemy, were declared contraband by an ordinance of Charles I. in 1626.
In the case of The Twende Brodre (4 Rob. 33), a Danish ship, with a cargo of fir timber, spars, balks and deals, taken on a voyage from Christiansend to Saint Malo or Brest, and captured, was restored, the cargo being held not to be bois de construction, and therefore not contraband under the Danish treaty; but it would have held otherwise, if the vessel had been bound direct to a port of naval equipment. Lord Stowell said,—“The terms used in the treaty are bois de construction; but that must be understood construction navale. It must be confined to purposes of naval equipment. The great difficulty will be to ascertain what is properly to be considered as ship timber. Timber has frequently, from particular circumstances, a definite and determined character; it may be denoted by a particular form, as knee timber, which is crooked timber, peculiarly useful for the building of ships; or it may be distinguished by its dimensions and size; but as to other timber generally, which is as much a thing of ambiguous use as anything can be, the fair criterion will be the nature of the port to which it is going. If it is going to Brest, the destination may be reasonably held to control and appropriate the dubious quality, and fix upon it the character of ship timber; if to other ports of a less military nature, though timber of the same species, it may be more favourably regarded. It is the every day practice of this court not to consider as included within the prohibition all that a more extended interpretation might justify. It restores spars and balks of ordinary magnitude, unless there is something special in the circumstances attending them to show they have a positive destination to naval purposes; planches de sapin—fir planks—being expressly excepted in the treaty, may, I hold, be carried anywhere. In other timber, of an indeterminable nature, the judicial test is to be sought from the destination under which it is going.”
The executive government of the United States has frequently conceded, that the materials for the building, equipment and armament of ships of war, as timber and naval stores, are contraband. (Mr. Randolph's Letter to Mr. Adet, July 6, 1795; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797 ; Messrs. Pinckney, Marshall and Gerry's Letter to the French Minister, January 27, 1798.) But it does not seem that ship timber is, in se, in all cases to be considered a contraband article, though destined to an enemy's port. In the case of the Austrian vessel, IL
Il Volante, captured by the French privateer L'Etoile de Bonaparte, and which was carrying ship timber to Messina, an enemy's port, it was held by the Council of Prizes at Paris, in 1807, upon the opinion of the Advocate-General, M. Collet Descotils, that the ship timber in that case was not contraband of war, it being ship timber of an ordinary character, and not exclusively applicable to the building of ships of war. (Merlin, Repertoire Universel et Raisonné de Jurisprudence, tome ix. tit. Prise Maritime, sec. 3, art. 3.)
As it is undoubtedly the prerogative of the sovereign to make new declarations of contraband, when articles come into use as implements of war which were before innocent, or had, in fact, no existence during former wars, the Lords of the Treasury, under the provisions of the Customs Consolidation Act, 16 & 17 Vict. c. 107, s. 55, have issued the following instructions to the officers of the Customs to prevent the exportation of steam machinery.
u Victoria Regina. “ Whereas by the Customs Consolidation Act, 1853, section 150, certain goods may, by proclamation or Order of her Majesty in Council, be prohibited either to be exported or carried coastwise, and whereas we, by and with the advice of our Privy Council, deem it expedient and necessary to prohibit the goods hereinafter mentioned either to be exported or carried coastwise, we, by and with the advice aforesaid, do hereby order and direct that, from and after the date hereof, all arms, ammunition and gunpowder, military or naval stores, and the following articles, being articles which we have judged capable of being converted into or made useful in increasing the quality of military or naval stores, that is to say, marine engines, screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, fire bars, and every article or any other component part of an engine or boiler, or any article whatever which is, can or may become applicable for the manufacture of marine machinery, shall be and the same are hereby prohibited to be exported from the United Kingdom, or carried coastwise. Dated, Buckingham Palace, 18th February, 1854.”
This proclamation has, however, since been modified by the proclamation issued on the 11th of April, 1854:“By the Lords of her Majesty's most honourable
Privy Council. “ The Lords of the Council having taken into consideration certain applications for leave to export arms, ammunition, military and naval stores, &c., being articles of which the exportation is prohibited by her Majesty's proclamation of February 18, 1854; their lordships are pleased to order, and it is hereby ordered, that permission should be granted by the Lords Commissioners of her Majesty's Treasury to export the articles so prohibited, to be carried coastwise to ports in the United Kingdom, and likewise to all places in North and South America, except the Russian possessions in North America; to the coast of Africa, west of the Straits of Gibraltar, and round the south and east coast of Africa; to the whole coast of Asia not within the Mediterranean Sea or the Persian Gulf, and not being part of the Russian territories; to the whole of Australia, and to all British colonies within the limits aforesaid, upon taking a bond from the persons exporting such prohibited articles that they shall be landed and entered at the port of destination; and that all further permission to export such articles to other parts of the world be only granted upon application to the Lords of the Council at this Board.
“ C. C. GREVILLE.” Tallow is not considered contraband on a destination to such a port as Amsterdam, Amsterdam being a great mercantile port as well as a port of naval equipment; but it would be so to a port of naval equipment, such as Brest. (The Neptunus, 3 Rob. 108.)
Tin plates for canister shot put on board of a cartel ship by a British manufacturer at Dover were condemned as droit of Admiralty. (La Rosine, 2 Rob. 573.)
The conveyance of military or naval persons in the service of the enemy to an enemy's port is in the highest degree contraband. The Friendship (6 Rob.