"The penalty of contraband extends to all the property of the same owner involved in the same unlawful transaction, and, therefore, if articles which are contraband and are going to the enemy are on board of the same vessel with articles which are not contraband, and all the articles belong to the same owner, all will be alike condemned, the innocent articles being affected with the contagion of the contraband articles."* Ortolan and Hautefeuille both oppose condemnation of the ship and innocent articles of the cargo under any circumstances, but they differ essentially as to the ground of condemnation of the contraband goods. Ortolan holds, with Vattel, that "confiscation is a logical punishment, which flows from the very nature of things, and is proportioned to the gravity of the offence, since it reaches all prohibited articles, whether the quantity be great or small. To go further and confiscate the neutral vessel and the merchandise not prohibited would be to apply a punishment arbitrary and variable in its extent, falling often on the innocent, and unjustifiable even in the particular cases mentioned."† Hautefeuille, on the other hand, disputes the power of a belligerent to inflict punishment on the subjects of a neutral sovereign, and says: "The power of the belligerent is not to punish the author of the act which injures him, but to prevent this act from being consummated, that the contraband should not be carried into the country of his enemy; to seize these articles when they are destined to the ports of his adversary. The secondary law, going further than the primitive law, has authorized him to confiscate the contraband, which he should only have detained. But the innocent articles, whether in greater or less quantity, of greater or less value, and the ship itself, are not dangerous to the belligerent; he has no right to take possession of them to prevent their going to their place of destina tion."‡ tions. Several treaties made by the United States, now in force, Treaty stipula exempt from confiscation the ship and the innocent articles of the cargo, and even stipulate that the vessel shall be allowed to pursue her voyage on surrendering the contraband goods, *Blatchford, Prize Cases, p. 452. The Springbok. † Ortolan, Vol. II, p. 187. Dana on surrender of contraband. except where the quantity of such articles is so great that the captor cannot, without great inconvenience, take it on board; in which case the vessel shall be sent to the nearest convenient and safe port of the captor for trial.* These treaties are with Bolivia, 1858, Ecuador, 1839, Guatemala, 1849, Hayti, 1864, Mexico, 1831, renewed in 1848, San Salvador, 1850, Sweden and Norway, 1783, renewed in 1827, and United States of Colombia, 1846. Similar agreements existed in treaties with Great Britain, 1794, France, 1800, and Brazil, 1828, but these treaties are now obsolete. By the treaty with Prussia of 1799, continued in part by that of 1828, it was agreed that even articles directly contraband should not be confiscated. Vessels of either party, having contraband on board, may be stopped and detained as long as the belligerent judges necessary to protect himself from the effects of the delivery of the contraband to the enemy, but the neutral proprietors are to receive a reasonable compensation for the loss occasioned by the detention. Or the captor may take any or all the contraband merchandise for his own use, paying for it the market price at the port of destination. The treaty contains the same stipulation for the freedom of the vessel on delivery of the contraband to the captor, as found in the other treaties cited.† Mr. Dana says, in reference to the latter stipulation: "It is for the interest of the neutral carrier, if he knows that the goods claimed by the visiting cruiser are contraband, to give them up and be permitted to go on his way, rather than to be carried into the belligerent's port to await adjudication upon them.... This stipulation is common in the treaties between the United States and the other American republics. Hautefeuille contends for this as a right of a neutral by international law, by which, however, he means that it should be the neutral's right, by justice and reason, in the author's opinion. No national act in diplomacy, or based on adjudication, and independent of treaty, has been produced or suggested by the distinguished author in affirmance of such a right. It is to be observed that, as the captor must still take the cargo into port and submit it to adjudication, and as the neutral carrier cannot bind the owner † Ibid. Prussia, pp. 719-27. * U. S. Treaties, 1873, "Bolivia,” p. 86. of the supposed contraband cargo not to claim it in port, the captor is entitled, for his protection, to the usual evidence of the ship's papers and whatever other evidence induced him to make the capture, as well as to the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all these papers and deliver them to the captor, and certainly the testimony of the persons on board cannot be taken at sea in the manner required by law. Such a provision may be applicable to a case where the owner of the goods, or a person capable of binding him, is on board and assents to the arrangement, agreeing not to claim the goods in court, but not to a case where the owner is not bound. There may also be a doubt whether the ostensible owner or agent is really such ; and so the captor may be misled. Indeed, a strong argument might be made from these considerations, that the article in the treaty can only be applied to a case where there is the capacity in the neutral vessel to insure the captor against a claim on the goods."* "In case of the delivery of the goods to the cruiser, equally as when the ship is sent into port, the validity of the seizure is to be decided by the proper tribunals. The articles are not to be deemed prize till condemned."+ bility. "It is equally well settled that the inception of the voyage Duration of liacompletes the offence; that, from the moment that the vessel, with the contraband articles on board, quits her port on the hostile destination, she may be legally captured; and that it is not necessary to wait until the ship and goods are actually endeavoring to enter the enemy's port; and that, the voyage being illegal at its commencement, the penalty immediately attaches, and continues to the end of the voyage, at least as long as the illegality exists."I "The general rule as to contraband articles, as laid down by Sir W. Scott, is that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. 'Under the present understanding of the law of nations you cannot generally take the proceeds in the return voyage. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods *Dana's Wheaton, p. 665, n. † Lawrence, p. 809, n. See Prize, &c. Blatchford, Prize Cases, p. 412. The Stephen Hart. Sec. 9. Quantity of contraband allowed. Sec. 10. Carry ing persons are actually endeavoring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach.' But the same learned judge applied a different rule in other cases of contraband, carried from Europe to the East Indies with false papers and false destination, intended to conceal the real object of the expedition, where the return cargo, the proceeds of the outward voyage, was held liable to condemnation."* In a note to the last paragraph quoted, Wheaton questions the soundness of the decision referred to, and says: "In order to sustain the penalty there must be, on principle, a delictum at the moment of seizure. To subject the property to confiscation whilst the offence no longer continues would be to extend it indefinitely, not only to the return voyage, but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the contraband articles." A case is reported in one of the English courts where an American vessel was condemned for the offence of carrying contraband, using false papers, after a lapse of three years, during which time several different voyages had been made.† "It may be here noticed that in the case of an article, however noxious with reference to contraband, as, for instance, gunpowder itself, a moderate quantity would be considered as part of the ship's stores and intended for its use; and this is not unfrequently provided for in treaties." The treaty with Prussia, previously quoted, exempts from seizure the quantity of arms and their munitions necessary for the use of the ship, and that which every man serving on board the vessel or passenger ought to have. "Of the same nature with the carrying of contraband goods and despatches is the transportation of military persons or despatches in the in the military service of the enemy. service of the enemy. "A neutral vessel which is used as a transport for the enemy's forces is subject to confiscation, if captured by the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service exempt her. The master cannot be permitted to aver that he was an involuntary agent. + Woolsey, p. 460. Lawrence's Wheaton, p. 797, n. * Lawrence's Wheaton, p. 809. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands must seek redress from the government which has imposed the restraint upon him. As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to define, since fewer persons of high quality and character may be of much more importance than a much greater number of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the belligerent has a stronger right to prevent and punish it; nor is it material, in the judgment of the prize court, whether the master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition is practised it operates as force; and if redress is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender."* ance of mili gers. "Assistance may be rendered to an enemy by a neutral in Pratt on conveymany other ways than by a supply of such material articles as tary passenhave been already mentioned, particularly by the communication of information and orders from the belligerent government to its officers abroad, or the conveyance of military passengers. Such a proceeding is justly considered as being at variance with the duties of a neutral and contrary to the precepts of international law, and may not be inaptly termed quasi contraband."† "It may perhaps be said that a soldier or two, like a package or two of contraband articles, might be overlooked; but it is held that to forward officers, especially of high rank, or even a single officer, would subject the neutral vessel to confiscation. Dana's Wheaton, p. 630-5. † Pratt, Law of Contraband, p. liv. |