1785 and 1799, is declared to be still in force. By this article, none of the usual military stores are to 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, but shall be allowed to proceed on her voyage." Then follows, in the treaty of 1799, the list, which has already been quoted, of articles of contraband. The government of the United States was desirous of introducing a similar stipulation in the treaty with England at the close of the American war, proposing, says Jefferson, to exempt "from capture by the public or private armed ships of either belligerent, when at war, all merchant vessels and their cargoes employed merely in carrying on the commerce between nations; it was refused by England." (1) It is curious that the treaty with Prussia, which forms an exception to all modern treaties, which is in contradiction to the law of Europe, as laid down by the best authorities, and which even the Americans themselves do not think of regarding (1) See Jefferson's correspondence, I. 53. For the treaty of 1828, see De Martens, Supp. XI. 11. 619. For the treaty of 1799, id. Rec. VI. 678. For that of 1785, id. IV. 42. as otherwise than an exception, though in their opinion a wise exception, to the law as usually recognized, is regarded by M. Klüber as the established law in the international code of Europe. Lest I should be supposed to have misunderstood his meaning, I quote his own words at length. "Les principes suivans déterminent les droits des belligérans, relativement au commerce des neutres et à la contrebande de guerre. Io. Il doit d'abord être présumé que les neutres ne font point le commerce de la contrebande; donc, et les états neutres étant d'ailleurs indépendans, les belligérans ne peuvent, à defaut de convention particulière, s'arroger le droit de visiter leurs convois de marchandises, soit sur terre, soit sur mer, suffit qu'il soit prouvé que les marchandises leur appartiennent. 2o. Toutes les marchandises qui ne sont point de contrebande peuvent être librement amenées par des neutres, si ce n'est aux places assiégées, bloquées ou investies. L'ennemi ne peut s'en emparer que lorsqu'il en a fortement besoin pour sa propre existence, et toujours en payant leur entière valeur. 3°. Si néanmoins un état neutre ou ses sujets auraient amené de la contrebande, et qu'elle tombât entre les mains de l'ennemi, ce dernier ne pourrait encore, sans raison particulière, se l'approprier qu'en la payant; ou bien il pourrait la renvoyer sur caution qu'elle ne rentre plus, et que tout commerce pareil cesse dorénavant. La confiscation de la contrebande de guerre, et encore moins celle des autres marchandises qui se trouvent dans le même convoi ou des moyens de transport, comme bâtimens, chariots, chevaux, etc., ne peut donc être justifiée en principe." (1) In the next section, M. Klüber admits that most of the treaties now in existence permit the confiscation of Contraband, but, for his extraordinary assertion that such confiscation cannot be justified on principle, he gives no (1) Klüber, Droit des Gens § 289, ed. 1831, p. 96. Moderne de l'Europe, vol. 11. Freight not allowed on captured contraband goods. reason; he arrives at it by no process of argument; he merely states in a note, that this principle is recognized by the American treaty of 1785. M. Klüber does not notice that all the great authorities on this subject are against him; he does not attempt to controvert their reasoning; he merely favours us with his unsupported assertion; and contents himself with contradicting what the opinions of all authorities, and the practice of Europe, interrupted only by one single exception, have declared to be the Law of Nations on this question. As I cannot explain this curious, but not singular case, in the work of M. Klüber, I pass on to the opinions of other writers on the subject. With regard to things carried to an enemy, having solely a military use, as arms, Grotius says, that he is to be regarded as an enemy who carries to an enemy the necessaries of war. With regard to articles of doubtful service, (ancipitis usus) as money, provisions, ships and naval materials, he says, that a difference is made by circumstances: "if I cannot defend myself without intercepting them, my necessity confers the right of doing so, but with the obligation of making restitution, unless other circumstances intervene but if the person who carried the goods knew that he was interfering with my right, as in relieving a place besieged, or ports blockaded, his goods may justly be confiscated." Bynkershoek also says, that contraband goods are to be confiscated: "quicquid non licet [amicis ad hostes nostros advehere] si amicus deprehendat, optimo jure publicatur, et eo solo absolvitur pœna mittentis amici." Vattel adds his authority to the same opinion: and, finally, De Martens states the same rule as the established law of Europe. Freight is not allowed to the ship carrying articles of (1) See Grotius, de Jure, lib. III. c. v. § 1, 2, 3. Bynkershoek, Quæst. Jur. Pub. lib. I. c. x. Vattel, Droit des Gens, liv. III. ch. VII. § 113. De Martens, Précis, liv. III. ch. VII. § 319. Contraband, which are seized by a belligerent. This rule is distinctly laid down by Bynkershoek, in the chapter just quoted, and it is also the rule as recognized in our Court of Admiralty. In fact the carrying articles of Contraband to a belligerent is reckoned as a wrong to the other belligerent, who punishes the parties, both owner and carrier, by seizing upon their property concerned in the offence. (1) A curious regulation occurs in the Russian ordinance for privateers, of 1787, which declares, art. XII., that if the captain of a neutral shall of his own accord give information that he has articles of Contraband on board, he shall receive, from the persons who take possession, double the amount of freight which he was to have received from the enemy. (2) This regulation does not interfere with the rule above laid down, but rather strengthens it, the reward to the captain for betraying his trust being mentioned as a gratuitous premium, and confirming the rule by the fact of its being mentioned as a deviation. Greater difficulty is involved in the question whether the having Contraband articles on board affects the ship and the other articles of the same cargo. By the ancient law of Europe the carrying Contraband made the ship liable to confiscation, (3) but this rule has been relaxed in modern practice. By our treaty with France at Utrecht, in 1713, it is expressly stated, art. XXVI., after mentioning that contraband goods are to be confiscated, "saving always, as well the ship itself, as the other goods found therein, which by this treaty are to be esteemed free; neither may they be detained on pretence of their being, (1) Rob. Rep. I. 242 and 288. (2) De Martens, Rec. IV. 341. (3) Sir W. Scott on Ringende Jacob. Rob. Rep. I. 90. See also declaration of England and Holland against Spain, 17 Sept. Effect of Con traband on the ship and goods that accom pany it. as it were, infected by the prohibited goods, much less shall they be confiscated as lawful prize." (1) The same clause is inserted in art. XIII. of the treaty of 6th February 1778, between France and the United States. (2) But in the ordinance of the King of France dated 26th July of the same year, 1778, it is expressly stated, in art. 1., that after the articles of Contraband have been taken out, and confiscated, the ship and remainder of the cargo are free, "unless the said articles of Contraband compose three quarters of the value of the cargo; in which case the ship and the cargo shall be confiscated altogether." (3) It is a frequent clause in treaties of commerce that all the cargo, except the articles of Contraband, shall be free to continue their voyage, and I believe that the rule laid down in the above French ordonnance, of 1778, is more severe than the present practice of Europe would admit. Our own courts do not observe any such practice of condemnation; the only extension of the penalties of Contraband, with us, being to the part of the same cargo, or to the share of the ship, which may belong to the owner of the Contraband. This is not any recent innovation, but is a rule of some antiquity. Bynkershoek gives a chapter to this subject, in which he says that both the remainder of the cargo, and also the vessel, may in some cases be confiscated. With regard to the cargo, he says it is just to distinguish whether or not the remainder of the cargo belongs to the same owner as the Contraband; if it does, it is confiscated, "ob continentiam delicti; " but if not, the property of the innocent is not affected by the conduct of the guilty. With regard to the ship, he says that the question depends upon the knowledge of the captain, or owners, of the illegality of the transaction. If the captain be also owner of the ship, and knows that he is taking contraband goods on board, his vessel may |