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and are the property of its subjects or citizens, and are staple articles of its commerce in time of peace, they have not been condemned as unlawful articles of neutral trade, except when the ship has been bound to a port of military or naval armament. Thus pitch and tar, hemp 89, rosin ", ship timber in balk", planks, unwrought iron, and other articles, have been under such circumstances treated with leniency. So likewise provisions have been held by Sir William Scott to be generally not Contraband, for instance in the case where they were the growth of the country from which they were exported 93, and not bound to a port of naval equipment; but all articles of human food have been held to be Contraband, when it was probable that they were intended for naval or military use. Thus corn, flour, meal, rice, sea-biscuits, salt, salt fish, wine, brandy, butter, cheese, have been condemned as Contraband of War, when destined to a port of naval equipment, unless it has been established that the articles were from their superior quality not adapted for naval use, but were merely luxuries for the service of domestic tables 95.

The doctrine of the British Prize Courts on the subject of provisions being conditionally Contraband of War, was approved by the United States in Congress in 1775, when they declared that all

96

88 The Sarah Christina, 1 Ch. Rob. p. 241.

89 The Apollo, 4 Ch. Rob. p. 158.

95 Nostra Signora de Begona, 5 Ch. Rob. p. 98.

91 The Twende Brodre, 4 Ch. Rob. p. 33.

92 The Ringende, Jacob, 1 Ch. Rob. p. 89.

93 The Jonge Margaretha, 1 Ch. Rob. p. 194. The Apollo, 4 Ch. Rob. p. 158.

9+ Cheeses were condemned in the Zelden Rust, 6 Ch. Rob. p. 93. The Frau Margaretha, Ibid. p. 92. Biscuits were condemned in the Ranger, 6 Ch. Rob. p. 125. Wines in the Edward, 4 Ch. Rob. p. 68.

95 The Weelvaart, 25 August 1799, cited in note I Ch. Rob. P.

195.

96 Journals of Congress, Vol. I. p. 241. Kent's Commentaries of American Law, Vol. I. p. 140.

vessels to whomsoever belonging, carrying provisions or other necessaries to the British army or navy within the Colonies, should be liable to seizure and confiscation. They have also been adopted to the fullest extent by the Courts of the United States; and it may well be doubted whether, in the case of the Commercen, those Courts have not gone beyond any precedent furnished by the Prize Courts of Great Britain. In the case of the Commercen, a Swedish vessel was carrying a cargo of provisions the property of English merchants to a Spanish port, there to be delivered to the Commissary of the British army engaged in hostilities against France in Spain. Great Britain was at such time at war with the United States, and also at war with France; but there was no alliance or common action between France and the United States. Sweden and Spain, on the other hand, were the allies of Great Britain in the war against France; but were neutral in the war against the United States. The cargo was condemned as enemy's property, but the ship was released, and in the District Court of Maine freight was allowed according to the rule of the Consolato del Mare and the ancient practice in cases, where enemy's goods are captured on board a neutral vessel. But Mr. Justice Story, in the Circuit Court of the United States, reversed the judgment of the Court below, so far as it allowed freight, and held that although strictly speaking it was not a question of Contraband, for that can arise only when the property belongs to a neutral, and in this case the property belonged to an enemy, yet that the shipowner, in carrying provisions for public use, and under a public contract, was assisting the military operations of the 98 The Commercen, 1 Gallison, P. 260.

97 Maisonnaire et al. v. Keating, 1 Gallison, p. 325.

enemy. He pronounced accordingly the voyage to be illicit, and inconsistent with the duties of neutrality equally as the carrying of the enemy's despatches, or the conveyance of military personages in his employ. The Supreme Court of the United States affirmed this judgment by a majority of four against three Judges, Mr. Justice Story himself forming one of the majority, and Chief Justice Marshall being in the minority. The latter eminent Judge was of opinion, that " a remote and consequential effect of an act was not sufficient to give it a hostile character; its tendency to aid the enemy in the war must be direct and immediate. It is also necessary that it should be injurious to us; for a mere benefit to another, which is not injurious to us, cannot turn a friend into an enemy"." Mr. Justice Livingstone and Mr. Justice Johnson concurred with the Chief Justice, that "Sweden, being the ally of Great Britain in the Peninsular war, her subjects had an indubitable right to transport provisions in aid of their Nation, or its allies. The owner therefore had a right to his freight; for he did no act inconsistent with our belligerent rights, while in the direct and ordinary exercise of those rights, which a state of war conferred on himself."

Treaty with

1796.

$145. The distinction between absolute Contraband British of War and conditional Contraband of War has been United fully recognised in the first Treaty of Commerce con- States in cluded between Great Britain and the United States on 4 Nov. 1796100. The list of absolute Contraband is worthy of note, as the same list, with a slight variation, has been adopted in the Treaty of Commerce concluded between Great Britain and Brazil on 17 Aug. 1827101

99 Wheaton,. p. 382.
100 Martens, Récueil, V.
10 Martens, N. R. VII. p. 479.

P. 674.

ART. XVIII. In order to regulate what is in future to be deemed Contraband of War, it is agreed, that under the said denomination shall be comprised all arms and implements serving for the purposes of war by land or by sea, such as cannon, muskets, mortars, petards, bombs, grenadoes, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gunpowder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, halberts, lances, javelins, horse furniture, holsters, belts, and generally all other implements of war; as also timber for ship-building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly for the equipment of vessels, unwrought iron and fir planks only excepted; and all the above articles are hereby declared to be just objects of Contraband, whenever they are attempted to be carried to an enemy.

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The variation, which is found in the Treaty of Great Britain with Brazil, consists in the substitution of the words "whatsoever may serve directly to the equipment of vessels of war," in lieu of the words whatever may serve directly to the equipment of vessels." The concluding portion of the same article of the Treaty between Great Britain and the United States recognises provisions and other articles, as Contraband of War in certain cases according to the existing Law of Nations. "And whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles not generally Contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise, it is further agreed that whenever any such articles so becoming Contraband according to the existing Law of Nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified, and the captors, or in their default the Government under whose authority they act, shall pay to the masters or owners of such vessel the full value of all articles, with a reasonable mer

cantile profit thereon, together with the freight and also the demurrage incident to such detention."

Preemp

§ 146. The Right of Preemption (droit d'achat) Right of is considered by Sir William Scott to be a belligerent tion. right under the Law of Nations, irrespectively of any Convention to that effect. "The right of taking possession of cargoes of this description, commeatus or provisions going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent Nations. The ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely: a century has not elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of Preemption, that is, to a right of purchase upon a reasonable compensation to the individual whose property is thus diverted. I have never understood that this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected on just grounds to have a concealed destination of that kind, or that, on the side of the neutral the same exact compensation is to be expected, which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, or may be driven by his necessities to pay a famine price for the commodity, if it gets there; it does not follow that acting on my Rights of War, in intercepting such supplies, I am under the obligation of paying that price of distress. It is a mitigated exercise of war on which my purchase is made, and no rule has established that such a purchase shall be regulated exactly upon the same terms of profit, which would have followed the adventure, if no such exercise of war had intervened: it is a reasonable indemnification and a fair profit on the commodity that is due, reference being had to the original price actually paid

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